Most public bodies will be aware of their duties under the Disability Discrimination Act 1995 (DDA). In addition to obligations not to discriminate against employees with disabilities (and to make reasonable adjustments to accommodate those employees), public bodies are also under an obligation to ensure that they do not discriminate against people with disabilities when providing goods, facilities, premises and services to the public.

 

These duties cover not just access to physical premises but also the accessibility of a wide range of IT-related systems, such as publicly accessible Web sites, internal intranets and other employee-facing IT systems. However, these duties relate only to the accessibility of the systems that a public body uses or inherits, and the services that it provides with them. They do not set down any express obligations in relation to the procurement process itself – the DDA does not contain any express obligations to “buy accessible”.

 

The new public procurement regulations[1] (the New Regulations), which came into force on 31 January 2006, contain new obligations in relation to the accessibility of goods and services procured by public bodies.

 

In addition to the New Regulations, many public bodies will also have new duties under the DDA. Following amendments brought in by the Disability Discrimination Act 2005, certain public bodies will have a duty to promote equality, under the Disability Equality Duty.

 

This article looks at the effect of these two pieces of legislation on the procurement and/or development of IT systems, Web sites and software by public bodies.

 

The current law – what the DDA does not cover

 

Whilst the DDA sets out obligations on organisations not to discriminate in the course of providing a service/employment, and, in relation to educational institutions, in the course of providing educational services to students, the DDA does not include any specific, proactive, obligations on organisations in relation to the procurement of ICT goods and services to ensure that those goods and services are accessible.

 

The fact that the DDA applies only to the provision of goods and services, not to actual goods and products, and that there is no legal obligation in the UK to ensure that hardware and software packages available for purchase are designed with accessibility for all in mind, further compounds this.

 

In practice, this means that an organisation could purchase a software package which is inaccessible to users with certain disabilities, and then find that it needs to take further steps (at additional cost to that organisation) to comply with its obligations under the DDA when it starts using the software in the event that users encounter accessibility problems. Had the organisation taken steps to ensure that the software package was accessible at the outset, it could have avoided having to take retrospective action to remedy that accessibility issue, provide a workaround or, in a worst-case scenario, purchase additional software.

 

The new public procurement regulations

 

The New Regulations update the previous public procurement regime by introducing a number of new provisions. Included in the New Regulations are a number of obligations on contracting authorities in relation to accessibility for disabled people and “design for all”.

 

Technical Specifications

 

The New Regulations set out a number of requirements in relation to the development of the requirements specification (referred to in the New Regulations as a “technical specification”) set out in the contracting authority’s invitation to tender (ITT). In particular, the New Regulations state that:

“[w]hen laying down technical specifications…a contracting authority shall, wherever possible, take into account criteria for disabled persons or the suitability of the design for all users.”[2]

 

This means that whenever a contracting authority issues an ITT for the procurement of any ICT goods and services (whether hardware, software or Web sites), it should include appropriate requirements in relation to the accessibility of that ICT.

 

The New Regulations also give some guidance to contracting authorities on defining those technical specifications. Subject to any requirements imposed by national law, the contracting authority should define its technical specifications by reference to independent standards in the following order of preference:

•        British standards transposing European standards

•        European technical approvals

•        common technical specifications

•        international standards

•        other technical reference systems established by the European standardisation bodies.[3]

 

In the absence of any of these standards, the contracting authority should define its technical specifications by reference to the following standards:

•        British standards

•        British technical approvals

•        British technical specifications relating to the design, calculation and execution of the work or works and use of the products,

and each reference to a technical specification should include the words “or equivalent” after it.[4]

 

Relevant standards

 

In terms of ICT accessibility, there are a number of relevant standards and guidelines to which a contracting authority may wish to refer.

 

Web sites

 

In relation to the accessibility of Web sites and Web delivered content, there is, at present, no relevant, official, British, European or international standard. However, following a Formal Investigation by the Disability Rights Commission (DRC) into Web site accessibility, the British Standards Institute recently introduced a publicly available specification, PAS78: A Guide to Commissioning Accessible Web sites (PAS78). The aim of PAS78 is to assist owners of Web sites by providing guidelines on the procedures to follow and questions to ask when developing Web sites. PAS78 references the World Wide Web Consortium’s Web Accessibility Initiative Web Content Accessibility Guidelines (WCAG) as being the relevant external accessibility guidelines for assessing the accessibility of Web sites. As it is a set of guidelines endorsed by the DRC, following PAS78 is also likely to be helpful in demonstrating an organisation’s efforts to make reasonable adjustments under the DDA in the event of any legal action.

 

The WCAG are an internationally recognised set of guidelines for Web accessibility. The WCAG set out three levels of compliance, Level A, Level AA, and Level AAA, and contracting authorities should therefore specify the appropriate level of WCAG compliance that they require. PAS78 itself does not specify a particular level of WCAG compliance, leaving this to the commissioning body’s discretion. In terms of current best practice (and EU/UK government guidance), Level AA is generally considered the appropriate minimum level of compliance. However the exact requirements of a contracting authority will depend on the particular circumstances of the project in question, and a contracting authority may wish to involve an accessibility consultant to assist it in developing appropriate accessibility criteria for each project.

 

Hardware and software

 

There are a number of ISOs and BSIs that are relevant to the accessibility of hardware and software. In relation to software, the International Standards Organisation has approved ISO/TS 16071 Ergonomics of human-system interaction – Guidance on accessibility for human-computer interfaces, which provides a road map for software developers, using similar guidelines to those provided under the WCAG for Web sites.

 

Other relevant recognised standards include: ISO 9241: The ergonomics of human system interaction and ISO 13407:1999 Human-centred design processes for interactive systems, and the W3C’s other accessibility guidelines in relation to authoring tools (ie software packages used to create and manage Web content, such as content management systems and blogging software, and Web site design tools like Dreamweaver) and user agents (ie Web browser applications).

 

User Testing

 

Whilst external standards are important in providing independent criteria, it should be emphasised that accessibility is not simply about “box ticking”, and that assessment criteria should combine any requirements to meet external standards with appropriate user testing. PAS78 in particular highlights the importance of ensuring that Web sites are subject to appropriate user testing with a sample of disabled users to ensure that those accessibility issues that cannot be mechanically tested or verified by reference to a written standard are checked.

Therefore, contracting authorities should also use the technical specifications to set out their requirements in relation to independent user testing of the delivered solution. Again, an accessibility consultant may be able to assist the contracting authority in developing appropriate user testing requirements.

 

The Disability Equality Duty

 

The Disability Equality Duty (DED) was introduced by the Disability Discrimination Act 2005, and comes into force in December 2006. Under the DED, public bodies (including central government, local authorities, further and higher educational institutions, NHS boards and other publicly funded organisations) are obliged to take certain steps to promote disability equality and to eliminate discrimination that is unlawful under the DDA. As with other parts of the DDA, two Codes of Practice (one for Scottish public bodies and one for public bodies in England and Wales) accompany the new rules.[5]

 

The Duty

 

Under the DED, public authorities must produce and publish a Disability Equality Scheme setting out how they will comply with their obligations under the DED. As part of this, a public body should carry out impact assessments to assess and review that public body’s policies, practices and procedures in a variety of areas, and develop action plans setting out the steps it will take to remedy areas of concerns.  In relation to ICT, this will include the use of ICT by its staff (eg software packages, knowledge management and hardware) and in relation to any “customer facing” services that it provides (including those provided over the Web).

 

The DED and ICT Procurement

 

The DED is also relevant to ICT from a development/procurement perspective. The Codes of Practice give the following examples:

“A [Government][Scottish Executive] Department that is planning to procure a new IT system should ensure that its action plan includes the work it will do to ensure that the new system is suitable for use by disabled employees. The action plan should also indicate the way it will develop the specification so that the system delivers the right products for disabled customers. This might include having a means of identifying those customers and their requirements, which could lead to being able to, for example, print notifications and letters in accessible formats for visually impaired people.”[6]

and

“The Head of Information Technology of a [Government] [Scottish Executive] department is overseeing the redesign of the department’s Web site, which is being contracted out to a web designer. The head of IT ensures that the tender documents include reference to the Disability Equality Duty and in particular the need to ensure that the web site is fully accessible to disabled people. The standard terms of contract are revised to reflect the fact that any updating and/or maintenance work on the Web site must ensure access for disabled people, in order to ensure that the department is meeting its disability equality duty.”[7]

 

These examples show that it is important that public bodies consider accessibility both at the outset and throughout any ICT development or procurement, and that the public body takes steps to ensure that the relevant contractor is suitably qualified. In developing an appropriate requirements specification and satisfactory acceptance testing procedure for the delivered solution, public bodies may wish to consider the standards and guidelines referred to above in relation to the New Regulations, and the guidance contained in PAS78.

 

Conclusion

 

Up until now, legislative requirements applicable to the accessibility of ICT have focussed on ensuring that an organisation does not discriminate against people with disabilities in the provision of services and the course of employment. However, the New Regulations and the DED have introduced new, proactive, obligations on public bodies in relation to ICT development and procurement.  These should help to assist public bodies in complying with their obligations under the DDA.

 

The new rules emphasise the importance of fully considering accessibility at the outset of any ICT project, whatever the size, and taking steps to review a public body’s current use of ICT at an early stage. As with all procurement requirements, it is important that the ITT clearly sets out the contracting authority’s requirements. In addition to this, the subsequent contract between the contracting authority and its chosen contractor should contain appropriate provisions to back up any assurances given in the preferred contractor’s response, including appropriate DDA/accessibility specific warranties, acceptance testing provisions and indemnities for when things do not go to plan.

 

Martin Sloan is a senior solicitor in the Technology & Information Group at Brodies LLP. Martin has advised a number of public and private sector organisations on IT accessibility issues. Email: martin.sloan@brodies.co.uk