Policy paper

Memorandum of Understanding

Published 10 October 2019

Parties to this MOU

• Government Digital Service (GDS) leads the digital transformation of government and is part of Cabinet Office. GDS will host the monitoring and reporting body for the regulations.
• The Equality and Advisory Support Service (EASS) is an advice service for discrimination issues and works with the Government Equalities Office. EASS will handle complaints received on public sector website and mobile application accessibility in Great Britain.
• The Equality and Human Rights Commission (EHRC) regulates the Equality Act 2010 in Great Britain. It is sponsored by the Government Equalities Office. EHRC is the named enforcement body in the web accessibility regulations.
• The Equality Commission for Northern Ireland (ECNI) protects equalities in Northern Ireland and is sponsored by the Executive Office. ECNI is the enforcement body for the web accessibility regulations as is their role under the Disability Discrimination Act 1995 (“DDA 1995”).

This MOU sets out the agreement between the parties in relation to monitoring and enforcement of the Public Sector (Websites and Mobile Applications) (No.2) Accessibility Regulations 2018.

The purpose of this MOU is to agree a monitoring and enforcement regime that is effective in practice and sets out the roles and responsibilities of the parties.

Document author

Jean King - GDS

Document approvers

Emily Ackroyd, Government Digital Service
Harriet Boyd, Cabinet Office Legal Advisors

Document date

This memorandum of understanding was made on 13/06/2019. It will be reviewed in September 2019.

Relevant terms

1. The accessibility requirement: this provides further detail to the definitions of what is required to ensure equality of access to websites and mobile applications. Regulation 5 requires public sector bodies to take the necessary measures to make their websites and applications more accessible by making them perceivable, operable, understandable, and robust — this requirement is referred to as “the accessibility requirement”.

2. Accessibility statement: The regulations require public sector bodies to publish an accessibility statement and keep that statement under regular review. The accessibility statement must explain which parts of the content of a website or mobile application are not accessible and, where appropriate, provide links to accessible alternatives. It will also include contact details for citizens to report accessibility issues and request information in an accessible format that has been excluded from a website or mobile application, and a link to the enforcement procedure if they are not content with the response received from the public sector body (PSB).

3. Monitoring and reporting body: there are new monitoring requirements under the regulations. GDS, on behalf of the Minister for the Cabinet Office, will monitor compliance of a sample of public sector bodies with the accessibility requirement, provide support to assist them to rectify any failings, and publish details of compliance. This body, based at GDS, will be referred to as ‘the monitoring and reporting body’ for the purpose of this document.

4. Enforcement bodies: The enforcement bodies for the regulations are the EHRC, ECNI and Minister for the Cabinet Office. The enforcement of regulations 6 ^{[footnote 1]} and 7 ^{[footnote 2]} is undertaken by the EHRC in Great Britain and the ECNI in Northern Ireland, using existing enforcement powers in the Equality Act 2006 and the Disability Discrimination Act 1995 (“DDA 1995). The Minister for the Cabinet Office will enforce regulation 8, to provide an accessibility statement and keep that statement under review.

Introduction

5. The Public Sector Accessibility (Websites and Mobile Applications) (No.2) 2018 (“the regulations”) require UK public sector bodies to make their websites and applications accessible for users, unless doing so would impose a disproportionate burden on the public sector body.

6. The regulations apply after:

• the 23rd September 2019 for websites created since the 23rd September 2018
• the 23rd September 2020 for all other websites
• the 23rd June 2021 for mobile applications

7. The regulations establish that the Minister for the Cabinet Office will monitor compliance and report back to the European Commission on the outcome of this monitoring. The UK will set up a monitoring and reporting body to conduct an annual sample of UK public sector bodies’ website and mobile application accessibility.

8. The UK has an existing equality regime under the EA 2010 and the DDA 1995. The regulations add to and complement the UK’s current approach to ensuring equality of access for disabled people. The EA 2010 is enforced by the EHRC and the DDA 1995 is enforced by the ECNI (the enforcement bodies). Under these Acts, public sector bodies are already required to make reasonable adjustments for disabled persons to ensure accessibility of services and information.

9. 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.

10. The monitoring and reporting body will also be responsible for the enforcement of the regulations (on behalf of the Minister for the Cabinet Office) of the new obligation in regulation 8 for public sector bodies to publish an accessibility statement and keep that statement under review. This body will also provide the technical assessment of websites as part of its monitoring function and will ensure, as far as is reasonably practicable, that the accessibility obligations are met without recourse to the enforcement bodies.

11. On the accessibility statement, EASS and ECNI will be listed as the bodies to whom individuals can raise complaints if they are unable to resolve the issue directly with the website owner via the feedback mechanism. The EHRC will be named as the enforcement body in the accessibility statement but no contact details will be supplied.

12. The monitoring and reporting body and the enforcement bodies need to effectively interact to provide a robust compliance mechanism which uses their respective, discrete expertise and skills to resolve issues as simply as possible. This MOU agrees the mechanisms by which the ECNI and EASS can pass information on complaints received regarding the accessibility of public sector websites and mobile applications to the monitoring body and the mechanism by which the monitoring body can escalate issues to the ECNI and EHRC.

Objectives

13. The purpose of this MOU is to agree a monitoring and enforcement regime that is effective in practice and sets out the roles and responsibilities of the parties. This includes:

• the process for EASS and ECNI to share details of complaints received about public sector bodies’ websites and mobile applications with the monitoring and reporting body
• the monitoring and reporting body’s process for escalating issues with public sector bodies’ websites or applications to the enforcement bodies which it is unable to resolve with the website owner
• the way the enforcement of the accessibility statement requirement will work practically

Matters which are out of scope of this document

14. This memorandum of understanding does not prejudice existing rights of users or enforcement bodies to take action under the reasonable adjustments duty.

15. This memorandum of understanding does not cover:

• The process by which the monitoring body will choose its sample and undertake the monitoring process as this will be agreed in consultation with stakeholders. This will be set out by the monitoring body in advance of its launch in April 2020.
• The process by which the enforcement bodies will take enforcement actions and the decision making behind whether to take action or not.

Monitoring and enforcement high level principles

16. EASS and ECNI will share complaints they receive relating to web accessibility with the monitoring body so these can be considered for inclusion in the monitoring sample (name of the website concerned only).

17. If EASS and ECNI receive complaints about new websites (created since 22 September 2018) prior to the first monitoring sample in 2020 the monitoring body will provide technical support on an ad hoc basis.

18. The monitoring body will undertake an assessment of compliance as part of its monitoring activity. The monitoring body will try to resolve these matters with the website or app owner.

Monitoring and enforcement process detail

19. The accessibility statement on a public sector body’s website must include a feedback mechanism to enable any person to notify a public sector body of potential compliance failures and to request information and content excluded in accordance with the regulations. It must also include a link to the enforcement procedure to which recourse may be had in the event of an unsatisfactory response to the notification of compliance failure or request for information/excluded content via the feedback mechanism.

20. The objective of the monitoring and enforcement mechanism is to help ensure that issues with web accessibility are resolved as simply as possible. The initial approach is to ensure that where possible, issues are resolved at the website/mobile application owner level without a need for further escalation.

21. Users will be able to report issues directly to the website owner via a feedback mechanism in the accessibility statement. GDS guidance will support this process by raising awareness of this obligation and providing details of how to resolve any issues which are identified.

22. GDS, as the monitoring and reporting body, will also work with website owners to resolve any issues of non compliance it identifies during its annual monitoring of a sample of websites and mobile applications. It will notify website and mobile application owners where their sites and apps are not compliant, and provide links to relevant training and guidance to help them meet that standard. The focus therefore is on supporting compliance, rather than enforcement for failure.

23. If the process above does not resolve the accessibility issue then the accessibility statement on each website will outline the next steps the user can take. Users who identify issues which they are unable to resolve with the owner will be directed to contact the EASS in Great Britain, and ECNI in Northern Ireland.

24. If EASS are unable to resolve an issue, they will refer it to the monitoring body who can include the website or app in its annual monitoring sample. The monitoring body will escalate issues to the enforcement bodies where it is unable to resolve these with the website owner. The monitoring body will share detailed reports of websites or apps which remain non-compliant with the enforcement bodies after the monitoring exercise so these can be considered for further enforcement action using existing powers.

Agreement between parties to achieve objectives

25. This section outlines the agreed process which the parties to this agreement will put in place to enable the process for resolving accessibility issues outlined in Annex A to operate effectively.

26. If EASS or ECNI receive a complaint regarding a public sector body’s compliance with the accessibility requirement or use of the disproportionate burden exemption (regulations 6 and 7), those bodies will manage this as they would a complaint under the EA 2010 or DDA 1995, and provide details of this complaint to the monitoring body for input into its compliance work.

27. If any complaint relates in whole or part to the provision of an accessibility statement (regulation 8) they will simply refer that element to the monitoring body who will assess it on behalf of the Minister for the Cabinet Office. The monitoring body will enforce this regulation using their compliance process by considering, with stakeholders, whether to include the website or application concerned in the monitoring sample.

28. In order to ensure that the monitoring and reporting body is aware of all complaints received under the regulations, if the EHRC request the EASS to identify particular complaints concerning public sector website or mobile app accessibility the EASS will extract the relevant cases and provide these, at an agreed frequency, in reports to the EHRC with copies going to GDS.

29. The enforcement bodies as part of the use of their investigatory powers can request that a website or mobile application be included in the monitoring sample. The monitoring and reporting body will consider such requests as part of the sample-setting exercise in consultation with stakeholders.

30. Where the monitoring and reporting body identifies accessibility issues with a website or application, such as a website or application failing a monitoring re-test, and is not able to resolve these with the owners of the website directly, it can refer the issue to EHRC or ECNI for their consideration as to whether to take further action using their enforcement powers.

31. In doing so the monitoring and reporting body will provide details of the failures on the website or application together with the steps which need to be taken to rectify these.

Resource

32. The Government Equalities Office will meet with GDS and the EHRC and the Executive Office will meet with ECNI on a quarterly basis from September 2019 to review the operation of this MoU and any resource implications for all parties. Cases of failed or refused compliance will be identifiable by GDS from mid-2020 for new websites and early 2021 for all other websites. As such, any resource implications will be considered as part of the Spending Review for 2020-21 onwards. As indicated at paragraphs 24-30 of this MOU, GDS will initially assess the websites reported to the equality bodies as part of the monitoring and reporting element of the compliance mechanism. A compliance period would also have been provided to organisations after receiving their report. Therefore the volume of cases that reach the final stage of enforcement action by the EHRC/ECNI are predicted to be minimal and have limited resource implications.If the prediction is inaccurate and significant resource implications arise for the EHRC and/or ECNI, this will be reflected in budgetary review discussions.

Review

33. This document will be reviewed on at least an annual basis, with the first review scheduled for September 2019.

Agreement

34. This MOU may be modified by mutual consent of authorised officials from GDS (Cabinet Office), EHRC, EASS and the ECNI.

35. This MOU becomes effective upon signature by the authorised officials from the GDS (Cabinet Office), EHRC, EASS and the ECNI.

Name:

Date: / /2019

By signing this agreement, GDS (Cabinet Office) agrees to the above statements.

Contact information:

GDS
Name: Peter Hatchard, Head of Policy
Email: [email protected]
Phone: 07768 023130

Annex A - Process for resolving accessibility issues

• A user identifies an accessibility issue with a public sector body’s website or app.
• The user raises this with the public sector body using the feedback mechanism in the accessibility statement.
• The PSB must provide an adequate response to any legitimate and adequate request within a reasonable period of time.
• If the user isn’t happy with the response received they can seek recourse through the Equality Advice and Support Service (EASS) or ECNI. (If EHRC receive direct complaints about the accessibility of websites they will direct these to EASS).
• EASS / ECNI will provide details of complaints on web accessibility to GDS, as the monitoring body.
• The monitoring body will consider websites reported using the enforcement mechanism for inclusion in its monitoring sample.
• As part of this sample, they will investigate their level of accessibility and work with website owners to resolve any issues of non-compliance it identifies.
• The monitoring body will produce guidance and links to training to support website owners to comply. It will also publish the monitoring results.
• If this does not resolve the accessibility issue then the monitoring body will refer the website concerned to the enforcement bodies providing the details of their investigation.
• The enforcement bodies may then choose to take action based on this information using their existing enforcement powers.

1. Regulation 6 concerns the accessibility requirement that public sector bodies within scope are expected to meet. ↩

2. Regulation 7 concerns the disproportionate burden exemption. ↩