UK accessibility requirements for websites and mobile applications

With the upcoming EU Accessibility Act, attention has also been drawn to the UK’s approach to accessibility and whether it will be updated in line with the EU requirements. Whilst the UK is not currently planning a new law on accessibility along the lines of the EU Accessibility Act, accessibility is becoming increasingly important and there have been important changes in the UK position for public bodies with the release of the new version of the web content accessibility guidelines (WCAG).  
Equality Act Requirements
The Equality Act 2010 (EqA) was introduced with the purpose of consolidating, updating and supplementing the various prior Acts and Regulations that formed the basis of the UK’s anti-discrimination and equality framework. The EqA deals with discrimination in a number of contexts, including work, education and the provision of goods and services. However, rather than focussing on the broader accessibility laws, this article will focus on the EqA’s application to websites and mobile applications.
Under Part 3 of the EqA, a service provider is subject to a number of duties and obligations in the way that the goods, services or facilities are provided to the public or a section of the public. It should be noted that:

1.  service providers can be individuals, businesses or public bodies and are caught irrespective of whether services, goods or facilities are provided for payment or not; and
    
2. where an employer arranges for another person to provide a service only to the employer’s employees, that third party is the service provider (rather than the employer) and the employees are regarded as members of the public.

Under the EqA, a service provider has a duty to make reasonable adjustments to ensure that persons with disabilities are able to access services that are as close as reasonably possible to the standard normally offered to the public at large.
Unlike the duty to make reasonable adjustments in the employment context (which is reactionary to requests from a disabled employee), the duty on service providers requires positive and proactive steps to ensure that disabled persons can access services (even if that means treating disabled persons more favourably than others in an attempt to remove that individual’s disadvantage). The duty applies to all service providers, whether they already have disabled customers or not; i.e. the service provider should anticipate the requirements of persons with various disabilities and ensure that appropriate adjustments are already in place at the time they want to use the service. Where the duty arises, the service provider is required to take reasonable steps to avoid or at least mitigate the disadvantage.
The duty to make reasonable adjustments can arise where disabled persons generally are placed at a substantial disadvantage (compared with persons who are not disabled) by:

1. The service provider’s “provision, criterion or practice”;
2. A physical feature of the service provider’s premises; or
3.  A service provider’s failure to provide an auxiliary aid.

Standards like WCAG, which state that digital information should be presented in a perceivable, operable, understandable and robust manner are not compulsory under the EqA, but compliance with such standards could be used as a way of demonstrating a company’s compliance with its obligation to anticipate needs and make reasonable adjustments. That said, compliance with a relevant standard (e.g. WCAG) is not a substitute for compliance with the duty to make reasonable adjustments to ensure that disabled persons have access to services (unlike with public bodies – see below).

Public Bodies

Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018 (Regulations) applies to all of the public sector, including all of central government and local government. They also apply to some charities and other entities that have a “general interest” remit.
The services in scope of the Regulations include mobile applications and websites. Mobile applications are specifically defined as “application software designed and developed by or on behalf of a public sector body for use by the general public on mobile devices such as smartphones and tablets, but does not include the software that controls those devices (mobile operating systems) or hardware”.
The term website is not defined in the Regulations, unlike mobile applications.
However, the UK Government in guidance takes a relatively broad approach to what is considered to be a website and have stated the following:

“The monitoring and reporting body for the regulations in the UK is CDDO (Central Digital and Data Office). When doing checks, CDDO will consider anything using web technologies as a website.

It doesn’t matter if it’s for internal use only or if you call it a programme, a tool or a portal. If runs in a browser and it’s using web technologies such as http protocols, then it is considered a website under the Public Sector Bodies Accessibility Regulations 2018.”

Where the Regulations apply, and as stated previously, the websites (including mobile applications) must be “perceivable, operable, understandable and robust”. Websites are deemed to meet these requirements if they meet the applicable WCAG accessibility standard.

Recent changes

The Regulations were updated in 2018, to reflect the post-Brexit position and to change the requirements so that they refer to the WCAG without version numbers.

At present, the Regulations don’t refer to a specific WCAG version and instead refer to the requirement to meet the A and AA standard in the WCAG as amended from time to time. Therefore as the standards change, so does the compliance requirement without any need to change the underlying Regulations.

The new version of the WCAG (version 2.2) has been published and is therefore technically applicable in the UK to public bodies. In practice, the UK Government has stated the following that suggests 2.2 will apply from a practical enforcement perspective from October 2024:

“The Government Digital Service (GDS) is working on how to assess the new success criteria in WCAG 2.2 and will start monitoring for the extra criteria in October 2024. Until October 2024 we will monitor accessibility of websites and apps to WCAG 2.1 level AA.”

When procuring digital products or services, contracting authorities are required to ensure that such products meet the WCAG standards. However, there may be exceptional circumstances in which a bidder can produce an “accessibility roadmap” to demonstrate that whilst the product or service is not fully WCAG compliant, the bidder has a concrete plan including a timeline with milestones for future compliance and information on how the bidder proposes to mitigate and workaround the accessibility issues in the meantime.

Public sector clients are becoming increasingly more sophisticated in approaching WCAG compliance, including requiring bidders to submit certain tender responses in a WCAG compliant manner. At selection stage, we have seen requests for confirmation of compliance with WCAG e.g. through a formal WCAG conformance report, and some authorities require evidence of a bidder’s commitment to accessibility through providing evidence of accessibility statements, policies and procedures.

For more information, please contact Matthew Buckwell and Henna Malik.

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