New web accessibility regulations for public sector bodies are now in force.
“Most higher and further education providers are considered to be in scope for the regulations, due to their dependence on government funding”
Government Digital Service (GDS) guidance
If you think your university or college doesn’t meet the definition of a public sector body and so may not need to comply – you should take legal advice to confirm this. But for everyone else, these are the key dates to remember:
- From September 2019 every new public sector website will need to meet approved accessibility standards and publish an accessibility statement saying they have been met
- Existing websites have until September 2020 to comply
- Mobile applications have until June 2021
Which education institutions do the regulations cover?
The UK government has published a quick summary of the regulations and how they affect education organisations. It also links to more resources, including more detailed guidance and the GDS's own guidance on who the regulations apply to and why accessibility matters.
A couple of details in the regulations might suggest that some of your web activities aren’t covered by the regulations – for example, regulation 4 (1) (b) excepts some non-governmental organisations. However, the exception doesn’t apply where the organisation provides services essential to the public or that specifically address the needs of (or are meant for) people with disabilities, so we believe this exemption for non-governmental organisations isn’t meant to apply to colleges and universities.
Regulation 4(1)(c) provides for exceptions for schools and nurseries. Members have asked us if an FE college could fall within this exception but we believe it’s unlikely, because FE colleges will fall within the definition of a ‘public sector body’. In any case this exception is limited and still requires that essential online administrative content is made accessible.
The regulations don’t distinguish between the various types of digital estate. They apply to all public sector websites and mobile applications, regardless of the source of the web page – but there are some types of content that aren’t covered. You’ll find these in regulation 4(2).
We believe that a web application running in website browsers is also covered by the accessibility regulations because it can be classified as a dynamic website, with user interactions and input responsible for running the page.
While the term ‘website’ isn’t defined in the regulations themselves, guidelines from the European Commission (EC) set out criteria for defining and measuring websites.
A website is a collection of related web pages:
- Sharing common characteristics (theme, navigation and visual aspects)
- Identified (internally and/or externally) by a site name
- Managed and communicated as a single entity
- Hosted on a specific instance of a web server
A web page is any content encoded in a hypertext formatted document (eg HTML). A web page regroups the web assets that are needed to convey an editorial message and the means to display it correctly.
Web pages can be static (typically having a unique URL for each page) or dynamic (ie it’s assembled at the time the user asks for it, so the same URL may show different content at different times or locations, and for different users).
The term ‘website’ in this context covers all systems delivered through a browser (such as HR, library and accommodation systems) unless they’re exempt under regulation 4(2).
If you need more detail, take a look at the EC websites overview.
What about your commercial activities?
Commercial activities that have their own legal identity and operate outside your institution’s control may fall outside the definition of public sector bodies and won’t be within the scope of the regulations as long the institution hasn’t funded, developed or controlled the content. However, to the extent that each commercial entity falls within the definition of a public sector body and operates a website or mobile application then the regulations will apply.
What if it’s too difficult or costly to comply?
Regulation 7 removes the obligation to comply with the accessibility requirement if doing so would impose a disproportionate burden.
To claim that this is the case, you must carry out an assessment, weighing the burden placed upon the university or college against the benefits of making the website and content accessible. The assessment must be explained in the accessibility statement that you must provide for each website or mobile application – and you will have to provide accessible alternatives where appropriate.
Lack of time or knowledge, or not giving accessibility priority, should not be considerations in the assessment.
Here’s an example:
College A’s VLE has learning materials from previous years that don’t meet accessibility standards and, although current accessible materials are available, learners sometimes use the legacy materials for revision.
College A should consider how much users with a disability would benefit from accessing the legacy content and weigh this benefit against the costs of making the changes, taking into account the resources available to the institution.
Depending on the circumstances, where it’s straightforward to make legacy website materials accessible it should be done. It may be harder to justify using a large proportion of available budget to update more complex materials such as graphs and diagrams, so it may be reasonable to delay – but remember that things change and what may be a justifiable disproportionate burden in year one probably won’t be in future if your institution is making progress with compliance; you may need to review the assessment again.
More about assessment
Assessments can take different forms depending on what area of the website you’re assessing to ensure compliance with the regulations – you might test your code, carry out manual or automated testing, or test the site using assistive technologies. The UK government’s Web Content Accessibility Guidelines 2.1 are helpful here.
The regulations don’t state that assessments must be in writing, but this information could be requested under a Freedom of Information Act 2000 (FOIA) request so it’s good practice to record any assessment in writing.
Remember, even if some fixes are judged to be a disproportionate burden you will still have to make reasonable adjustments for people with disabilities when they’re needed.
“In some circumstances, you might need to do things earlier than 2020. If you make substantial changes to the code, for example to create new features, or if you create a subdomain with its own distinct codebase, it’s likely that these will need to be fully accessible from 23 September 2019”
UK government guidance, 'Understanding the new accessibility requirements for public sector bodies'
How do you know what ‘substantial changes’ means?
The regulations don’t define ‘substantial changes’ so institutions must make a decision based on the circumstances in each case. In many instances it will be fairly clear that, where large amounts of website content are being published and changed, this triggers the legal obligation to meet the accessibility requirements.
The cautious and recommended approach is to ensure compliance with the regulations when making any amendments to websites or mobile applications from 23 September 2019.
You’re making a copy of a previous year’s VLE as a basis for this year’s VLE, and it contains 99% of the same content. Do the new accessibility regulations apply?
If the VLE (intranet) was published before 23rd September 2019 the regulations are unlikely to apply to the content until the website undergoes a more substantial revision, but all substantial new code or new sections/subdomains would need to be compliant. All websites published and new documents uploaded after 23rd September 2019 will be captured by the regulations and need to meet the accessibility requirement.
The regulations aim to make websites and mobile applications more accessible to users. Rather than revising content without making it accessible institutions should take the opportunity to assess and update the accessibility of learning materials when courses are being updated.
One of your lecturers uploads an occasional new document to a VLE but no change is made to the look and feel of the website. Do the new accessibility regulations apply?
Under normal circumstances any office file formats are included within the scope of the regulations as long as they have been published on or after 23 September 2018.
However, as in the last example, where a VLE is considered to be an extranet or intranet under the regulations any content on the VLE before 23 September 2019 doesn’t have to be compliant with the regulations until the VLE undergoes a substantial revision. It is unlikely that uploading an occasional new document to the VLE would be considered to be a substantial revision.
Nevertheless, where small numbers of single changes are made and documents are uploaded this can add up to substantial change at some point. Keep the changes to the VLE under review and make a judgment based on the circumstances of each case about when substantial revision has taken place. At this point the entire intranet or VLE must be updated to meet accessibility standards.
Similarly, changing the theme or altering the look and feel of a website can amount to substantial change at some point even if the content hasn’t changed. If an institution makes substantial changes to the code, for example to create new features, or if it creates a subdomain with its own distinct codebase, these will need to be fully accessible from 23 September 2019 (the same deadline as for new websites).
If your intranet/extranet underwent a substantial revision between 23 September 2018 and 23 September 2019 would the new accessibility regulations apply?
The content of extranets and intranets published before 23 September 2019 falls within the partially excepted criteria under Regulation 4(2) and therefore you wouldn’t be required to comply with the regulations until the website undergoes a substantial revision.
The regulations don’t apply to office file formats published on websites before 23 September 2018 unless your university or college needs them for ‘active administrative processes’.
What’s an active administrative process?
The phrase isn’t defined or explained in the regulations or guidance, so the cautious, good practice approach is to ensure that any office file format documents that are used to engage with learners or others meet the accessibility requirements.
It is likely that all non-archival content used in teaching and learning needs to meet the accessibility requirements
And remember that all office file formats published on websites after 23rd September 2018 must meet the accessibility requirements in any case. Content of intranets and VLEs published before 23rd September 2019 don’t need to be made accessible until such websites undergo a substantial revision (as explained in the previous section).
Does one size fit all?
The regulations require you to “produce an accessibility statement”. One accessibility statement could be sufficient for more than one platform but, if accessibility differs from one of your institution’s platforms to another, you must provide specific accessibility information to tell users about those differences.
Good practice would be to carry out a separate assessment in each case and review them all once a year.
The aim of the accessibility statement is to ensure that users are aware of the parts of the website that are not accessible and to assess the offered alternatives. Guidance issued by the GDS says it is good practice if the statement is published on the home page of the website that members of the public will reach in the first instance. Access to this statement should then be available via a clear, easily noticed link from every other page on the website.
When it comes to VLEs the regulations are silent about how the accessibility statement will apply, but it would be logical for the statement to be viewable on the login page on the institution's public-facing website, and available to users before they sign up to a VLE.
Regulation 4 (3) (b) states that extranets and intranets are websites that are only available for a closed group of people and not to the general public. VLE content published before 23 September 2019 will not be required to be compliant with the regulations until such time as the VLE undergoes a substantial revision. An explanation of this should be included in the institutions accessibility statement.
For more information, take a look at the GDS guidance on making your website or app accessible and publishing an accessibility statement.
What about content you buy in?
The regulations place the legal obligation of compliance on the public sector body.
If you haven’t funded or developed the third-part content, and you don’t control it, you’re exempt from this obligation. But if you’ve made decisions about it, for example by commissioning or specifying it, the content will come within the scope of the regulations.
The GDS has said that buying or licensing a third-party product could be considered to be funding the product and this would oblige you to meet the accessibility requirements for those materials – from e-books and e-journals to HR systems – by working with the supplier as necessary to achieve compliance.
Alternatively, you might need to source an equivalent accessible alternative but if none is available, you’d need to explain this in the accessibility statement and justify it under ‘disproportionate burden’. In this case it would be good practice to provide workarounds while urging the publisher to make their product accessible in the procurement process.
For outsourced websites or mobile applications and services with third-party content that your institution develops, controls and/or funds you’ll need to work with the service provider to ensure compliance.
Even if content is not caught by the new accessibility regulations you have a duty to make reasonable adjustments under the Equality Act 2010 so we recommend that you work with all third-party suppliers to ensure the accessibility standards.
Find out more about how the accessibility regulations apply to third-party content.
Although the regulations don’t require you to have a contract with suppliers when you procure web content, they do require you to work with them to make sure their content or mobile applications are compliant so it makes sense to follow government guidance on procuring technology when you renew your supplier agreement:
The regulations apply only to pre-recorded time-based media published after 23 September 2020.
In terms of making recorded video resources and lectures accessible your university or college must decide what to prioritise and where to apply resources, but the GDS has provided guidance on making decisions about what to prioritise.
What about partially accessible content?
Some accessibility tools, such as automatic speech recognition, have variable success rates. So, is an inaccurate transcript better than no transcript?
In most circumstances even an inaccurate transcript will help people with accessibility needs. But the regulations don’t help us to answer this question; they simply state that all public sector websites or apps must meet accessibility standards unless doing so would impose a disproportionate burden. If that is the judgement, you’d need to carry out the disproportionate burden assessment and include the information in your accessibility statement.
Bear in mind that archive content of websites and mobile applications doesn’t have to meet the accessibility requirements. In this context that means website content that is not needed for active administrative processes and is not updated or edited after 23rd September 2019.
It is not acceptable to only make adjustments for one type of disability. Institutions have a duty to cater for the needs of all people with all types of disability who would be a prospective user of their website. Although it may not be possible to fully meet accessibility standards for all content, it is reasonable to assume that it is the right thing to do to improve the accessibility of materials where possible.
Is it a good idea to remove resources if it’s too difficult to make them accessible?
As the regulations don’t say anything about removing content for websites and mobile applications it’s hard to say what might be acceptable under the monitoring and enforcement procedures but the GDS’s blog post about its approach to monitoring and enforcement might be useful.
We suggest you should try to make all resources as accessible as possible to accommodate all disabilities rather than removing ‘difficult’ content and then carry out a ‘disproportionate burden’ assessment for the very hardest content, describing your reasoning and so keeping people who have accessibility needs properly informed.
Compliance with the regulations falls within the existing enforcement powers of the Equality Advisory and Support Service, The Equality and Human Rights Commission and the Equality Commission for Northern Ireland.
It is important to bear in mind that the new accessibility regulations build on existing obligations to people who have a disability under the Equality Act 2010 (or the Disability Discrimination Act 1995 in Northern Ireland). These say that all UK service providers must consider ‘reasonable adjustments’ for disabled people.
It is clear that the onus is now on institutions to comply with the accessibility requirement for websites and web delivered content and that failing to do so is a failure to make reasonable adjustments. Likewise, failing to respond satisfactorily to a request for information in an accessible format is considered a failure to make a reasonable adjustment.
In terms of risk this makes it easier for a student to make a discrimination claim where websites and learning materials do not meet accessibility standards.
While the new accessibility regulations impose fresh obligations on universities and colleges, they also offer an opportunity to improve student experience and outcomes for all learners.
Visit our accessibility web pages
Our sincere thanks to everyone who worked with us on putting together this overview of the accessibility regulations:
- Pinsent Masons
- Alistair McNaught
- Policy Connect
- The steering group of the Further and Higher Education Digital Accessibility Working Group: Robert McLaren, Dr Abi James, Ben Watson, Alistair McNaught, Dr Fiona Strawbridge, Rohan Slaughter, George Rhodes, and Ben Watson (who have also produced a digital accessibility toolkit)
- Dr Andrea Gideon and Dr Albert Sanchez-Graells, University of Bristol Law (Dr Sanchez-Graells has published a useful blog post about the EU accessibility directive)