The States has left it up to the legislative drafters to decide how the anticipatory access duty should be drafted into the legislation but the  policy intent is that
there should be an anticipatory/proactive element for education and goods or services providers (but not for employers and accommodation providers, or clubs and associations if they did not provide education or services). This could, as in the UK, be framed as an anticipatory element to the reasonable adjustment duty.

The individualized, responsive duty to make reasonable adjustments upon request would apply across all fields – including to employers and accommodation providers. A service provider would be able to justify not making an adjustment, such as not making a service accessible either through the defence of disproportionate burden (in the event of a claim of denial of a reasonable adjustment) or through objective justification (in the event of a claim of indirect discrimination).

With respect to the requirement to prepare an accessibility action plan, the States has decided that this requirement should only be compulsory for the public sector and that the duty should apply five years after the legislation comes into force.

The preparation of a plan would be voluntary for the private and third sectors, noting such a plan could be useful as evidence when responding to a complaint.

The States has agreed that no complaints relating to the removal or alteration of a physical feature can be made until five years after the commencement of the Ordinance.

Original Policy Proposals (2019)

Anticipatory accessibility duty – requirement for education providers and goods or services providers to prepare an accessibility action plan within two years of commencement – but with no duty to implement physical alterations to buildings in relation to accessibility until 10 years after commencement (subject to a fine for non- compliance).

Consultation Feedback (2019-2020)

A separate duty is not needed. Instead, either the reasonable adjustment duty could be owed to disabled people in general or a complaint of indirect discrimination could be made.

Final – What the States have Agreed (2020)

Separate anticipatory accessibility duty removed.

For education and goods or services providers the reasonable adjustment duty will be to disabled people generally, as in the UK.

Duty to prepare accessibility action plans for publicly accessible buildings to apply only to the public sector. Five year lead-in period.