Disproportionate burden is a clause in the public sector accessibility regulations that allows organisations to avoid full compliance without penalty (not indefinitely) if the organisation proves that to achieve compliance would be a ‘disproportionate burden’.

To make a claim you must thoroughly evidence that compliance would for example:

• Incur costs greater than the organisation has funds for
• Not significantly impact disabled users
• Be wasted effort if new products are to supersede current platforms

This guide takes you through the content we feel helps demonstrate a comprehensive disproportionate burden assessment. All the following sections we normally incorporate into a single assessment document.

You can find out more about claims in our understanding disproportionate burden guide.

In this section you should give a summary explaining what the document is for and what the context is.

For example, you might say something like:

Under The Public Sector Bodies (Websites and Mobile Applications) (No.2) Accessibility Regulations 2018 (“The Regulations”), organisations are required to undertake an assessment for disproportionate burden where compliance with the regulations may not be feasible to achieve.

This document outlines our disproportionate assessment process and decision for INSERT UNIQUE and EXTENUATING CIRCUMSTANCES.

You should give some clarity to the regulation requirements and provide context for why this assessment document is needed.

For example, we might identify that the regulations require all public sector bodies digital systems to conform with the latest version of the Web Content Accessibility Guidelines as well as publish an accessibility statement.

This lets readers know that there are technical standards that must be met. And sets the context for later on in the assessment when you start to go into more detail about what specific technical requirements you may be unable to meet and why.

Disproportionate burden

The most important part of the regulations that are relevant to the document you are currently writing. It is useful to clarify what the regulations say about disproportionate burden which is leading to the content of this document.

Within the regulations, Part 2.7 introduces the clause for Public Sector Bodies to claim ‘Disproportionate Burden’ in which compliance with the accessibility requirements is not required if doing so would impose a disproportionate burden on the Public Sector Body following assessment of the extent to which compliance with the accessibility requirements imposes such a burden.

“In undertaking such an assessment, the Public Sector Body must take account of relevant circumstances, including-

1. The size, resources, and nature of the public sector body; and
2. The estimated costs and benefits for the public sector body in relation to the estimated benefits for persons with disabilities, taking into account the frequency and duration of use of the specific website or mobile application.

In the event that an assessment such as this determines that compliance with the accessibility requirements would impose a disproportionate burden, this must be reflected in the associated accessibility statement and where appropriate attempt to mitigate impact to users through alternate means.”

This section is where you start to get into the specific details of the case you are assessing for disproportionate burden. Here you would want to give information about the service or product, what it does and who uses it.

For example, you might list something like the following:

“This report outlines the organisation’s assessment of disproportionate burden for the requirement of delivering compliance for the website examplewebsite.gov.uk against all The Regulation requirements including meeting the latest published version of WCAG AA requirements. At time of writing this is WCAG 2.2

The website is used by large numbers of the public which includes users with additional access needs. We know that some of the website cannot easily be accessed by users with additional access needs or users of assistive technology. The current website is due to be replaced with a new website by the end of February 2023 which is 3 months from the date of this assessment. The organisation plans to assess the value of attempting to resolve issues with the current website, given the imminent replacement.”

It is good to clarify for readers exactly what has changed which has led to new associated costs for making accessibility changes, or new requirements introduced by the regulations which are causing the possibly disproportionate task.

In this section you will want to outline exactly what the regulations are doing to cause this assessment. For example, if you were claiming for now needing to make all lecture content 100% accurately captioned you might say something like the following:

“Under the Public Sector Bodies (Websites and Mobile Applications) Accessibility Regulations 2018 our obligation as a university have changed. From September 23rd 2020 all pre-recorded audio/video content that is published by the University on either external or internal platforms is required to meet Web Content Accessibility Guidelines (WCAG) 2.2 AA by law, which demands captions, transcript and audio descriptions on all content.

Because of this change to the University’s responsibilities the output would now not only be the captioning / transcription / audio descriptions of lecture content specifically used by identified students with relevant access needs but would require the University to ensure that all lecture content was fully and accurately captioned / transcribed / audio described.”

Now you have outlined the context of the situation, what you are looking to assess and what impact the regulations are having on the requirements for your organisation, you should explain how things currently stand.

For example, you could list supporting information such as:

• Current usage figures
• Current methods for supporting requests from disabled users
• Current methods for providing content
• Current known accessibility issues, or overall accessibility health of the service in question
• Current funding in place

Taking the captioning example again, we might cover some of the following points:

• The number of hours of lecture recording the university produces per year (speaks to the scale of the problem)
• The average usage figures for lecture recordings (speaks to the impact of the service for users)
• The current platforms used to host lecture content or generate automated captions (can be referenced to show current levels of accessibility support and current costs associated)
• The current routes to producing 100% accurate manually remediated captions
• The number of lecture recordings needing to be remediated as part of inclusive learning plans (shows current level or use by disabled students with relevant access needs)
• Current support options for disabled students that have relevant access needs (shows other forms of support to show that captions are not a single point of failure)

The best thing to use this section for is to set that benchmark for what is currently going on, and if you are already doing quite a lot to support people as best you can, you can really show that you are already delivering a reasonable service within current constraints.

This is the cornerstone of the assessment where much of the previous sections come together. You should have already described what the assessment is related to, the changes imposed by the regulations, and how your system or processes currently work.

In this section you should clearly state what impact the changes will now have on the way you provide the service. Here is where you show the scale of the problem and the kinds of costs involved in meeting the requirements.

Remember, in this section you are just setting out the scale of the challenge to overcome, not offering solutions. That’s comes later in the assessment where options are discussed.

For an example of these challenges, we can look at our captioning example again where we might say:

“The university produced X thousand hours of lecture recordings in the last academic year, all of which would need to be manually remediated under the regulations.

Through our current process for providing manually remediated captions it costs £Y per hour of content.

Based on the number of hours that would need to be remediated and the cost per hour of content, to meet the regulation requirement could cost the university £Z hundreds of thousands of pounds.”

An important part of the regulations description for disproportionate burden assessments is identifying the impact not fixing the problems will have on disabled users. Instead of reinventing the wheel to review the impact, most organisations will have guidance and processes to conduct Equality Impact Assessments (EqIAs) which are a tool used to review the impact of any decisions on user groups who for example might fall within one of the protected characteristics of the Equality Act such as having a disability.

We recommend that you conduct an EqIA in line with your organisations own processes looking at what impact keeping the current non-compliances in place would have on disabled users for the timeframe relevant to your claim, and what mitigating actions you could put in place to reduce this impact (those mitigating actions come in useful later on in the assessment).

If you are not sure where to start with an EqIA good starting points are to either contact someone in HR, or your EDI representatives who should point you in the right direction.

Once you have the EqIA completed, you should include it as an appendix in this assessment and summarise the findings in this section.

In the challenges section you outlined the scale of the task to meeting the regulations under the current methods you have in place. Now is the time to look at alternatives which might offer other ways forwards. This could include any of the following:

• Do nothing – what happens if you take no action?
• Look at alternative suppliers – what are the other market options and how much would it cost and what time would it take to switch
• Try to comply with current methods – This would then incur the disproportionate costs outlined in the challenge section
• Look at changing the current methods internally to reduce costs

You should try and consider all options available to you and write them down, even if you consider them to be obviously not viable. Clearly working through why options cannot succeed is important to evidencing that the task cannot be completed and is therefore disproportionate.

Listing alternative options and supplier is a great way to show that you are doing the best you can in terms of value for money already. For example, in the captioning example, if you can show quotes for other manual captioning remediation services, and you are currently getting a good deal, it removes the question of if there are cheaper manual remediation services out there and lends credibility to your costs outlined in the challenges section.

Now you have clearly identified the challenge and discussed multiple options for ways forward you will want to break these down in a cost benefit analysis table.

List each of the individual options, what the benefits are, what the costs are, what the available budget is, and what the outcome would be.

You are coming to the end of the assessment and by this point you should have outlined:

• What the assessment is looking at
• What the regulations say about disproportionate burden
• How the regulations are changing what you have to do
• How your current process, system or service works
• What the challenges are given the new regulation requirements
• What the impact is going to be for disabled users
• What options you might have to address the situation
• What the costs and benefits are for each issue

You are now ready to make a decision. If you have clearly shown that to fix the areas of non-compliance now would be far outside the ability of your current capacity whether that be due to budget constraints, staff availability, timelines or other impacting factors, you should now be able to confirm that your organisation is treating this as a disproportionate burden under the regulations and feel comfortable in the fact that you have comprehensively assessed the situation.

Alternatively, you might find that you cannot build a compelling case to justify this as a disproportionate burden exemption. However, in the process of thoroughly looking into possible mitigating actions through the EqIA, alternative options to help deal with the problems and what costs are associated, you may have found a way forward to resolve the issue. In this case, the assessment has not been wasted and while not a disproportionate burden, can still stand as evidence to show how you are addressing accessibility issues and building a roadmap towards greater compliance.

No matter what your decision is, whether it is or is not a disproportionate burden, there will always be things you can do to remediate or mitigate against some of the issues. Some content for this section should have come from your completion of the Equality Impact Assessment but it is always good to think about broader actions that can be taken to reduce accessibility problems. Not just to resolve the issue discussed in the assessment but to make sure issues like it do not appear again in future.

You might want to consider actions such as:

• Staff training related to avoiding accessibility issues or creating more accessible content
• Reviewing contact and complaint routes to ensure accessibility issues can be raised by users of assistive technology
• Keeping up with technology updates to the services you use as suppliers fix accessibility issues in future releases
• Increasing capacity for support where possible
• Reviewing current support methods
• Communications campaigns to raise awareness of support options available to user groups

If you have completed an assessment and found the issue to be a disproportionate burden. You will need to list it in your relevant accessibility statement.

What you should do is provide a summary of the issue and why it is a disproportionate burden in no more than a few sentences. You can mention that this has been assessed and broadly what you are doing to try and mitigate the issues.

It is then always good to direct people to a contact route if they have questions related to the disproportionate burden issue.

For example, you might say:

“The organisation has identified that the current website has several technical accessibility issues which may impact user experience but has chosen not to invest in fixing these issues on the current platform due to a replacement website which will be released in the next three months.

The organisation believes that to fix issues on the current platform which will be decommissioned in three months would constitute a disproportionate burden under the regulations and is focussing investment on ensuring the replacement website meets regulation requirements.

In the meantime, the organisation is continuing to offer support for users with additional access needs and you can request this support using the methods listed in the “Feedback and contact information” section of this statement. If you would like more information on how we are managing accessibility issues, please contact accessibility-team@example-organisation.test.”

To find out more about writing an accessibility statement and where you would include this content, read our How to write an accessibility statement guide.