Monitoring and Enforcement

Monitoring

The Government Digital Service (GDS) on behalf of the Cabinet Office are the Monitoring Body for the Public Sector Bodies (Websites and Mobile Applications) Accessibility Regulations 2018. This means that GDS are responsible for the roll out and guidance of the regulations.

To ensure organisations are meeting their obligations under the regulations, GDS are planning to audit organisations and to see clear evidence of compliance and meaningful engagement, with a further in depth look at a smaller number of organisations where they will undertake a much more detailed review of a site’s compliance.

GDS have recently released their MOU detailing Monitoring and Enforcement information.

GDS part of the Cabinet Office, will host the monitoring and reporting body for the regulations. From 2020, this body will be responsible for monitoring the compliance of a sample of websites and mobile applications based on population size (2056 websites with a simplified method, 113 with an in-depth method, and 72 mobile applications each year based on June 2018 ONS data). This body will also support compliance with the regulations through the provision of guidance and signposting to relevant training, and will also publish details of the monitoring results. The monitoring body is a new requirement and will add a further layer to existing obligations and duties under the EA 2010 and the DDA 1995.

It has been explained that these numbers are worked out based on the EU Implementing Decision 2018/1524, which details the monitoring framework to ensure comparable monitoring is possible across the EU.

Annex 1(2.) details the size of the sample. Note the first monitoring period is not a calendar year.

Enforcement

The Equality and Human Rights Commission (EHRC) are the enforcement body for the regulations, and will be supporting GDS with the progression of challenges under the regulations, that will work in the same way as existing Equality Act challenge rules, in that a successful challenge could result in ‘unlimited damages’ on the offending organisation.

From latest conversations with GDS and EHRC it is expected that a challenge put through the enforcement process will progress something like the below:

  1. Direct engagement with the organisation in question – The user should first speak to the organisation they are challenging and see if the issue can be resolved through local changes.
  2. Support from the Equality Advisory Support Service (EASS) – If the user cannot resolve the issue with the organisation they should look for help through the EASS.
  3. Engagement with GDS – If issues are still persistent then GDS can step in and review the case. If it is found that the organisation needs to make changes, GDS will advise them of what is expected and the organisation will be given a reasonable time frame in which to make changes.
  4. EHRC involvement – If an organisation persists in ‘belligerent’ refusal to support users and does not complete the expected changes in the time frame set by GDS, then the EHRC will step in and may begin proceedings against the organisation.

Below is an excerpt from the regulations which explains about the enforcement procedure. As can be seen from below, the regulations are quite specific that a failure to meet the accessibility compliance levels (ie. WCAG 2.1 AA) is seen as a failure to meet reasonable adjustments under the Equality Act 2010. This will be of major impact to organisations who cannot demonstrate their accessibility compliance programme, as this puts them in clear infraction of their legal duties.

12.—(1) A failure by a public sector body to comply with the accessibility requirement is to be treated as a failure to make a reasonable adjustment. 

(2) A failure by a public sector body to provide a satisfactory response to a request to provide information in an accessible format, pursuant to regulation 13(2) (right to request information in an accessible format), is to be treated as a failure to make a reasonable adjustment. 

(3) A “failure to make a reasonable adjustment” in this regulation means a failure to make a reasonable adjustment for the purposes of— (a) sections 20, 21 and 29 of the Equality Act 2010; or (b) sections 19 to 21 and 21B to 21E of the Disability Discrimination Act 1995(c).  

There is also secondary risk associated with this wording. From the 23rd September 2019 which is the commencement date of enforcement for all new website, members of the public will be able to directly challenge organisations by asking for the following:

If an organisation cannot answer these questions from 23rd September 2019, they will again open themselves to direct Equality Act challenges from members of the public.