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

Making a disproportionate burden claim requires a lot of supporting evidence and can only be used for niche failures to meet compliance. For example, you might be able to claim disproportionate burden for fixing one very specific failure against WCAG success criteria because to do so would require a complete website redesign for a tool which has low usage figures and there are other routes around. You would not be able to claim disproportionate burden generally, such as not having the funds or capacity to take any action towards compliance.

Each disproportionate burden claim should be unique and no two claims which have the required amount of evidence will be similar. By its nature the disproportionate burden clause is only for special or extenuating circumstances.

The content of this guide is to help you understand what disproportionate burden is for and how best to use it in your own organisation.

If you want information on how to conduct and disproportionate burden assessment before you make a claim, read our How to write a disproportionate burden assessment guide.

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.

If, following the assessment, a public sector body determines that compliance with the accessibility requirement would impose a disproportionate burden, it must—

1. explain in its accessibility statement the parts of the accessibility requirement that could not be complied with; and
2. where appropriate, provide accessible alternatives to documents held by that public sector body that are not available on their 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.

The Government Digital Service (GDS) who monitor regulation compliance give a useful summary and some examples of their own to help you understand disproportionate burden and what you need to do to complete an assessment.

In their 2021 Monitoring report, GDS gave further advice to organisations on the use of disproportionate burden.

GDS specifically stated:

“Lack of time or knowledge does not constitute a disproportionate burden and the majority of digital content should be fully accessible.”

A good disproportionate burden assessment is a cost/benefit exercise and should consider factors such as:

• how much it will cost to fix the issue
• the amount allocated to spend on the website annually
• how extra costs would impact the organisation’s budget
• the number of users the issue impacts if not fixed
• benefits that fixing issues would bring to users
• how long an organisation expects this disproportionate burden to apply
• if the site or service is procured or outsourced, how long the third-party supplier is contracted for, and how much it would cost to re-tender or renegotiate the contract to get the issues fixed

Several pieces of research have found problems with the way organisations make disproportionate burden claims. The list below has been compiled from the following sources:

• GDS 2021 monitoring report
• All Able 2020 Disproportionate burden misuse research
• Thomas Pocklington Trust, Accessibility in Further Education 2022 report

The main problem we have found with disproportionate burden claims is that people writing them generally are not aware of how much evidence is required to make a claim and often see the clause as a “get out of jail free” card for issues that are hard and do not easily fit into other exemptions. Broadly mistakes fall into the following categories.

No supporting information

Often, when people see the phrase “disproportionate burden” and read the brief description of its use, they jump to classify complex issues as disproportionate burden in their accessibility statements without completing an assessment first.

When challenged for evidence, and the ‘no information’ response is given, it often comes with any number of excuses:

• The person who did the assessment (which we are sure exists) has left
• There was no assessment conducted
• Conversations were had but nothing was written down

None of these excuses are acceptable. All cases suggest that the organisation has poor document retention, relies on individual points of failure, or do not understand how to hold on to documentation that supports legal claims, in other words an admission of incompetence.

Some organisations try to buy time, either to create documentation to support the claim after it has been made or refuse requests for this information on the basis that the claim is currently being worked on. If you are thinking about making a claim, do not do this.

The claim can only come after an assessment and documentation has been completed, if you have made a claim, you must have documentation from prior to the claim being made, or you are doing it wrong.

Copying example wording

The GDS Sample Accessibility Statement contains the following wording as an example of content for the disproportionate burden section:

“Navigation and accessing information

There’s no way to skip the repeated content in the page header (for example, a ‘skip to main content’ option).

It’s not always possible to change the device orientation from horizontal to vertical without making it more difficult to view the content.

It’s not possible for users to change text size without some of the content overlapping.

Interactive tools and transactions

Some of our interactive forms are difficult to navigate using a keyboard. For example, because some form controls are missing a ‘label’ tag.

Our forms are built and hosted through third party software and ‘skinned’ to look like our website.”

Many people who write statements based on the GDS sample statement template see the wording and automatically assume that because the government wrote it in the example, then it must be sensible to claim, either that or they just do not bother to read what they are leaving in a LEGAL DOCUMENT.

In either case, it is incredibly obvious when a statement includes the copied example text and, in every case, when challenged for evidence, proves to be a false claim without supporting evidence.

Claiming disproportionate burden for exempt content

Many organisations are not aware of what content is and is not in scope of the regulations. Because of this, people write disproportionate burden content in accessibility statements which make claims for exempted content.

In many cases attempting to meet technical accessibility requirements for all content that is exempted by the regulations may easily be considered a disproportionate amount of effort. For example, providing live video captions through all mediums, or making all document content 100% accessible going back decades. This unreasonable challenge is the reason these requirements are listed as their own exemptions.

You can get more detailed information on the regulation exemptions and how they may affect your systems or content in our PSBAR Exemptions guide.

Claiming against the advice of the monitoring body

Organisations sometimes feel that they have “too much on” or “are not focussing on accessibility right now”. For whatever reason, whether it be staff resourcing, budgets or organisational direction, some organisations will make claims that taking any action to align and comply with the regulations would be too much effort.

These claims are normally categorised by broad sweeping issues such as:

• Too costly to fix anything on the website
• Too costly to conduct any testing
• Do not know how to test
• Grouping many issues together to inflate costs and overall challenge

As a reminder GDS specifically stated:

“Lack of time or knowledge does not constitute a disproportionate burden and the majority of digital content should be fully accessible.”

If you are thinking about making a disproportionate burden claim, it must be for something specific that cannot be accomplished, not general troubles with testing or taking steps towards improving accessibility. Many actions can be undertaken for free and focus on staff upskilling or awareness raising. There are also many free checking tools and guides to help people understand how to identify issues and make changes, so avoiding all action is just not acceptable.

Blaming suppliers

Some people try to suggest that their disproportionate burden claim was made by the 3rd party supplier of a platform or content and that is the reason it was included in the statement, and they do not hold supporting evidence. This is an incorrect assumption and not an acceptable response.

Only the public sector body is legally responsible for the accessibility of digital systems and content under the regulations. Therefore, only the public sector body can make disproportionate burden claims for their own individual situation. A supplier cannot make a claim and you cannot adopt a generic catch all claim from a supplier.

Supplier claims often tend to suggest that they cant make any changes to a platform at this time, this is often not true and instead shows a choice to not care about accessibility as a priority for their system.

While the ability of a supplier to make changes to a system that would otherwise be outside of your control to remediate can be an impacting factor for a disproportionate burden claim, it has to be paired with evidence for your individual case as an organisation.

To help you understand and gauge what might be considered a disproportionate burden we have put together some examples in the below sections based on real world cases.

Use these examples to learn about how to approach disproportionate burden claims. Do not use these examples to base your own claims on. You must always conduct your own claims unique to you.

Possible disproportionate burdens

Making accessibility changes to an end-of-life website

This example organisation has just received a monitoring letter under the regulations, requiring immediate fixes to their current main website. Instead of fixing anything on the current website, the organisation is only a couple of months away from launching a replacement website and feel that to spend time and money fixing a website which will no longer exist in a few months would be a disproportionate burden. The organisation intends to use that time and money to ensure better accessibility on the new website, while continuing to offer extra support to disabled users in the meantime.

This could certainly be a strong case in some instances. Claims do not have to be only for small things. Specific claims may be for large tasks such as fixing a whole website, but the disproportionate requirement in this example might be timelines rather than technical complexity. There is no point spending a lot of time and money fixing a website if it is to be replaced in 3 months by a newer website. The time and money would be better spent ensuring the new platform is more accessible.

Captioning large amounts of video in a timely manner

Many educational institutes have the issue of captioning lecture content at scale and to high accuracy. The regulations require 100% accurate captions for video and in many cases automated captioning is not sufficient. This problem is often made more complicated by technical or academic jargon which is not easily translated by the automated captioning.

This example organisation has identified that to make all 15,000 hours of lectures per year 100% accurate captions would require an initial use of automated captioning, and then final tweaks manually by a human. The time taken and associated cost for staff to be paid to do this, or to outsource the task would cost several hundred thousand pounds. The organisation does not have the budget within the department responsible for lecture recordings and captioning to pay for this and feel that to achieve this would be a disproportionate burden.

Instead, the organisation is committing to still record and automatically caption all lecture content but will manually review lecture captions for all students who require it as a reasonably adjustment, or on request. To support the best result from automated captioning, the organisation is working with lecturers on good practice behaviours such as speaking clearly with a mic close by and describing images on screen, so context is preserved from just the audio.

Image libraries

This example organisation maintains several image libraries that are essential for the work they carry out. While the systems themselves can be navigated in an accessible way, there is no way to make the image content accessible with alternative text descriptions which would give enough information to an end user, without breaking other codes of compliance or without having knowledge about the images depictions unavailable to the organisation.

Because there is a significant impact to blind and partially sighted staff but at the same time physically no way to provide the information needed to give an accurate alt text description the organisation is at a stalemate and cannot improve the situation. The organisation feels that this is a disproportionate burden and is looking at ways to ensure staff can complete all job role activities as best as possible within the physical limitations of their unique job requirements.

This type of example can come up a lot in jobs where a level of sight, physical fitness and mobility are required to complete job tasks. For example, where a user might need to compare a real object or person they are looking at to an image on a screen or a photograph. In these cases it is important for organisations to discuss and be clear on physical requirements for job roles as well as looking into available workplace adjustments and accommodations that can be made to make roles as inclusive as possible. The purpose of the images in the image libraries is of great importance to the validity of these types of disproportionate burden claims.

A supplier is not going to fix their service any time soon

This example organisation uses a 3rd party product to provide pensions information to staff. The 3rd part product is off the shelf and has not been customised for the organisation, who have no ability to remediate accessibility issues without supplier involvement.

A complaint has been submitted under the regulations and the organisation has received a monitoring letter requiring accessibility fixes to this pensions system. The organisation takes the following steps:

1. The organisation contacts the supplier to ask them to make the changes requested by the government monitoring body, to which the supplier refuses
2. The organisation reviews the contract to look for requirements on the supplier to provide a legally compliance service
3. The organisation discusses the contract requirements with the supplier to encourage them to make the changes requests. The supplier still refuses and cites costs, effort required, and it not being in the roadmap
4. The organisation has 3 years left on the contract with the supplier and cannot get them to make fixes without costly legal action or leave without breaching contract.

There is no action the organisation can take at this point to either resolve the issues or remove themselves from the situation and replace the platform with a more accessible solution, without significant expenditure of time, staff resources and money. The organisation feels this is a disproportionate burden situation and are putting in place more support to mitigate future complaints until the contract runs out. The supplier will not be considered for contract renewal and a new tender to replace the pensions platform will be conducted with accessibility requirements clear in the tender and contract.

Definitely not a disproportionate burden

Copying example text

This example organisation has claimed for the following:

“Navigation and accessing information

There’s no way to skip the repeated content in the page header (for example, a ‘skip to main content’ option).

It’s not always possible to change the device orientation from horizontal to vertical without making it more difficult to view the content.

It’s not possible for users to change text size without some of the content overlapping.”

When responding to a request for the evidence supporting this claim, the organisation said:

“The Government Website you refer to was used as a guide to support the updating of our accessibility statement. However, our Marketing Team examined each section in detail, adding to the statement to tie in with Audit results, so we would not regard this as a ‘cut and paste’ as you suggest.”

Despite their refutation that the matching wording claim was a cut and paste job, the organisation still could not provide any evidence to support WHY they could not fix these issues at this time.

The organisation has no evidence to back up the claim. They have made this claim in a publicly available legal document because they have copied the government sample statement example text without thinking about what they are doing and are trying to avoid admitting they do not know what they are doing. Do not do this.

Exemptions

This example organisation has suggested that “Some of the PDF documents on this website are supplied by third party financial companies”, and cannot be made to be accessible.

While it may be outside of the control of the organisation to make 3rd party financial companies provide these documents in an accessible format, there is already an exemption under the regulations for various types of 3rd party content including documents such as these which the organisation does not fund or have any control over, but is legally required to publish this 3rd party content on their own domain.

This claim should instead be in the “Content that’s not within scope of the regulations” section of the organisation’s accessibility statement and should suggest what users can do if they need to access this content in an alternate format.

Associate website issues with other activities to inflate problems

This example organisation claimed:

“There’s no way to skip the repeated content in the page header (for example, a ‘skip to main content’ option).

It’s not always possible to change the device orientation from horizontal to vertical without making it more difficult to view the content.

It’s not possible for users to change text size without some of the content overlapping.

Some of our interactive forms are difficult to navigate using a keyboard. For example, because some form controls are missing a ‘label’ tag.”

Now you will notice that this is a copy-paste of the government example text, but the response is what we want to look at in this example.

When challenged for evidence to support this claim, the organisation responded:

“Given that some of the failure related to the design, colour, and contrast of the website, and that procuring a new website would be over £100k, the organisation considered this to be a disproportionate burden and therefore completed the statement accordingly.  Equally, some of the colour and contrast issues also relate to our logo and branding guidelines and changing a corporate logo and associated stationary is also very expensive.”

Failure 1: You will notice that this response in no way relates to the claimed issues of skip to content, orientation and text sizes. Instead, the response talks about colour contrast being the issue. So, there is no evidence provided for the original claim subjects.

Failure 2: The organisation has suggested that the only way to solve colour contrast issues would be the procurement of a new website. This is totally unrealistic as there are normally many cheaper options to updating colour palettes without buying a whole new website. This is inflating the issue to seem bigger than it is. The organisation did not supply any cost benefit analysis or show what other cheaper options might have been reviewed before suggesting this nuclear option.

Failure 3: Further inflation of the issue occurs by suggesting that by fixing colour contrast issues on the website and with corporate branding would obviously lead directly to costs for updated stationary. The condition of print stationary should have no bearing on making a website usable for disabled users and it is offensive to suggest this is the case. Anyone with common sense would slowly update print stationary as supplies run out to reduce waste. This is not an excuse to not support disabled users on a digital platform.

Failure 4: The colour contrast response obviously has nothing to do with the original claim subjects but is also holds no truth when reviewed on its own. The example organisation’s website uses a majority black and white colour scheme (including for its logo) with some red and yellow accents. Their particular implementation of these colours does not cause contrast issues on their website. This proves that every claim made, and all figures given are clearly irrelevant and dubious given that all this has been said in defence of an issue that does not even exist.