The Cost Defense, and Who Has to Prove It

Most accessibility laws let you argue that a fix costs too much. Every one of them puts the job of proving it on you. That is the single fact worth taking off this page. Owners reach for this defense believing the complainant has to show the fix was affordable, and the statutes say the reverse in about as many words as it takes to say it.

The American regulations put it plainly. A public entity has the burden of proving that compliance would result in the alteration or the burden it is claiming. Australia legislated the same allocation in a single sentence, saying the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship. The European version arrives from a different direction and lands in the same place, since the operator has to carry out an assessment, keep it, and hand it to the regulator on request. Nobody has to disprove your claim. You have to make it.

Fundamental Alteration Is Not the Same Argument as Cost

These get run together and they are separate defences with separate tests. Undue burden asks whether the money and effort are out of proportion to your resources. Fundamental alteration asks whether doing the work would change the thing into something else. Money can be found. A thing that stops being itself cannot be put back, which is why the second test does not soften as you get richer.

The tell is the noun that follows the phrase the nature of, and it is different in every regime, which means these are three tests sharing one label. Under the American public sector rules the protected thing is the nature of a service, program or activity, so the question is about what you run. Under Section 508 it is the nature of the information and communication technology, so the question is about the thing itself. Under the German transposition of the European act it is the essential characteristics of the product or service, so the question is about what you sell.

Two regimes do not carry the pair at all. Australia has one merged concept, unjustifiable hardship, and no separate alteration test. The European public sector regime and its national transpositions have disproportionate burden and no fundamental alteration sibling. So a public body in the United Kingdom or the Netherlands has a cost argument and no identity argument.

What the American Rules Require Before the Defense Exists

The Title II web rule's duties provision, at 28 CFR 35.204, and its Section 504 counterpart are close to the same paragraph twice, and between them they set four conditions. Reading them in order is the fastest way to understand why most informal burden claims would not survive contact with a regulator.

1. 1You prove it. The regulation says the entity has the burden of proving that compliance would result in the alteration or the burden. There is no version of this where somebody else has to show the fix was cheap.
2. 2The head of the organization decides. The decision has to be made by the head of the public entity, or of the recipient, or by a person that they specifically designate. A developer cannot make it. Neither can a vendor, and neither can the web team.
3. 3All resources count. The decision is made after considering all resources available for use in the funding and operation of the service, program or activity. Not the website budget. This is the condition that kills most claims, because a body with a large overall budget and a small digital line is being measured on the first number.
4. 4It gets written down. The decision must be accompanied by a written statement of the reasons for reaching that conclusion. If there is no document, there was no determination, and there is nothing to produce when somebody asks.

Then comes the sentence that most people stop reading before. Where an action would cause the alteration or the burden, the entity has to take any other action that would not. That other action still has to get people with disabilities the benefits or services, to the maximum extent possible. The Section 504 version puts the same idea in the opening sentence instead, saying compliance is required to the extent that it does not result in a fundamental alteration or undue burden. Either way the duty does not switch off. It gets smaller by exactly as much as you proved, and no more.

The Minimal Impact Provision, and Why It Is Not a Tolerance

Both American rules carry a separate provision that gets quoted as a grace margin, and it is not one. A body not in full compliance is deemed compliant where it can demonstrate that the noncompliance has so minimal an impact on access that it would not affect a person's ability to do four things. Those four are accessing the same information, engaging in the same interactions, conducting the same transactions, and otherwise participating in or benefiting from the same programs. And the yardstick for whether their ability was affected is a strict one, because it asks for substantially equivalent timeliness, privacy, independence and ease of use.

Three things make this much narrower than it sounds. All four abilities have to survive rather than most of them, because the list is joined by and rather than by or. The comparison is not roughly as good, and the word doing the most work in it is privacy, which quietly rules out any workaround that involves asking a member of staff for help. And it is the entity that has to demonstrate all of this, which puts it in the same category as everything else on this page. This is not a rule saying that a small percentage of failures is fine, and it should never be written into a plan as though it were.

Colorado Publishes the Test in Words an Owner Can Use

Colorado put its version into a plain-language guide alongside the regulation, which makes it the easiest place to see the shape of the thing. Its rule covers four concepts in one section, which are undue hardship, undue burden, fundamental alteration and direct threat. It repeats the federal requirement that the head of the entity or their specific designee makes the decision and writes down why.

Colorado's published gloss on undue burden has three limbs. Not having the resources. Contracts or laws stopping you. Not being able to get the help you need. That third one is the useful one, because it names a real situation that the money-only framing misses, which is a small authority that has the budget but cannot find anyone to do the work.

Colorado also carries a direct threat test that nobody else in this set has, and it is a safety question rather than a cost question. It asks how bad the risk is, how likely it is to happen, and whether changes could reduce it. Keep that separate in your head. It exists for the case where making something accessible would create a hazard, not for the case where it is expensive.

The European Version Comes With a Regulator Attached

This is where the European approach genuinely differs from the American one, and the difference is procedural rather than substantive. Under the American rules you make a determination and keep the paperwork in case somebody asks. Under the European Accessibility Act as transposed, claiming the defense is an event you have to report.

Germany's transposition is the clearest published version, and it sets out five duties that come attached to the claim. You carry out the assessment yourself. You document it and keep it for five years from the last time the product was made available or the service was provided. You give the market surveillance authority a copy on request. You notify the authority immediately when you rely on the defense, and where a product is sold in several member states you notify each of their authorities too. And if you are a service provider, you redo the assessment for each category of service at least every five years.

That five-year clock is a floor rather than a schedule. The reassessment has to happen whenever the service you offer changes, and whenever the authority responsible for checking the service asks for it, and in any case at least every five years. A claim made when the law took effect in June 2025 does not sit undisturbed until 2030. It sits undisturbed until the first time you change the service.

What the European Assessment Actually Weighs

The criteria are published, which is more than can be said for most cost defences, and there are three of them. Two are ratios and one is a comparison. Knowing them tells you what a real assessment looks like, and by extension why a paragraph asserting that a fix is too expensive is not one.

• The net cost of compliance against your total costs, meaning both operating and capital expenditure for making, distributing or importing the product, or for providing the service.
• Your estimated costs and benefits against the estimated benefit to people with disabilities, weighted by how many times and how often the product or service is used. A heavily used service is harder to excuse than a rarely used one.
• The net cost of compliance against your net turnover. The plainest of the three and the one most owners assume is the whole test.

The annex then enumerates which costs you are allowed to count, which is unusually specific for this kind of provision. On the one-off side it names five. Extra staff with accessibility expertise, training and skills acquisition, building a new process to bring accessibility into product development or service delivery, writing accessibility guidance, and the one-time cost of getting familiar with the legal position. On the running side it names planning and designing the accessibility features, the production process itself, testing the product or service for accessibility, and producing the documentation.

The second criterion is the one that stops this being a pure affordability test, because the benefit to disabled users sits on the other side of the scale. The same weighting turns up in the British and Dutch public sector rules, where the assessment has to take into account the frequency and duration of use of the specific website or app. A rarely visited archive and a daily-use benefits portal do not get the same answer from the same budget.

The British Public Sector Version, and the Three Reasons That Do Not Count

The United Kingdom's public sector regulations put the assessment duty in the regulation itself. A body must perform an assessment of the extent to which compliance imposes a disproportionate burden. In doing it, the body must take account of its own size, resources and nature. It must also weigh its estimated costs and benefits against the estimated benefits for disabled people, and that second half is weighted by the frequency and duration of use of the specific site or app.

Two duties follow a finding. The body has to explain in its accessibility statement which parts of the requirement it could not meet, and where appropriate provide accessible alternatives to documents that are not available on the site. So the British version is public in a way the American one is not. The determination goes on the website, where anyone can read it, which is a meaningful discipline on how freely it gets claimed.

The government's own guidance names three things that cannot support the claim, and they are the three reasons most often given. A lack of time. A lack of knowledge. A decision that accessibility is not a priority right now. None of those is a disproportionate burden. They are descriptions of a project that has not been planned.

Australia Legislated the Burden of Proof, and a Court Has Tested It

Australia is the clearest statute in the set, because section 11 of the Disability Discrimination Act does not leave the allocation to be inferred. It says the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship. One sentence, and it settles the argument that consumes the most time everywhere else.

The same section lists what gets weighed. The nature of the benefit or detriment likely to accrue to or be suffered by any person concerned. The effect of the disability of any person concerned. The financial circumstances of the respondent and the estimated expenditure required. The availability of financial and other assistance. And any relevant action plan given to the Commission. That last factor is worth pausing on, because a published action plan is one of the few things in accessibility law that actively counts in your favor when a claim is being weighed.

There is also a worked example, and it is the reason this defense has a poor reputation in Australia. In the case brought over the Sydney Olympics website, the organizing committee ran the hardship defense on a claimed 2.2 million Australian dollars and 368 person days of work. The complainant's experts put the job at about four weeks at modest cost. The defense failed. A cost estimate is evidence, and evidence can be answered.

Every Successful Claim Leaves a Floor Underneath It

Six regimes, six ways of saying the same thing, and it is the part of this subject that gets left out of the summary an owner reads. Winning the argument reduces what you owe. It never removes it.

Israel's is the most literal floor of the six and the easiest one to picture. There is a step down rather than a switch off. Read the others in that light and they all say a version of it.

What to Do Before You Rely on This

The honest commercial answer is that this defense is expensive to build and cheap to lose, and that it usually costs more to document properly than the work would have cost. Getting a real number for the fix is the first step in either direction, because you cannot claim a burden without one and you cannot decide to just do the work without one either.

• Get the fix priced before you argue about it. The Sydney Olympics claim collapsed on the numbers, and numbers are the part of this that can be checked.
• Work out whose budget the regulator will look at. The American rules say all resources available to the program, which is usually a much larger figure than the one the digital team is working with.
• Check whether you have taken funding for the work. Under German law that ends the argument. Under Australian law it counts against you.
• Find out who is allowed to sign it. If your rules require the head of the organization or a named designee, a determination made anywhere else in the org chart is not a determination.
• Write the statement while you still remember the reasoning. It is a required document in the American regimes and a published one in the British regime, and it is much harder to write a year later.

None of this is legal advice, and a burden claim is one of the places where that sentence carries real weight. Whether your facts support the defense is a question about your facts. So is whether your organization's resources are the ones a regulator will count, and how your national transposition of the European act differs from the German one described here. Those are questions for a lawyer in your jurisdiction. What this page can tell you is what the paperwork has to contain and who has to sign it, so that the conversation with your lawyer starts somewhere useful.