BBRS Quarterly Insight Report – October 2021

The BBRS is a wholly independent organisation, both in its decision-making and its operations. It has been established to help SMEs who have not had access to other forms of resolution.

The organisation’s key goal is to resolve disputes fairly between businesses and banks; and to promote trust in business banking relationships. This goal will be achieved by reviewing cases impartially, on the basis of what is fair and reasonable.

This is the second BBRS’ Quarterly Insights Report, providing information about our casework since our launch on 15 February 2021 until 31 August 2021.

Registrations

As of 31 August 2021, the BBRS had a total of 626 registered cases. Of these, 67% are historical cases, 18% are contemporary cases and 15% had not yet been established as either historical or contemporary due to insufficient preliminary customer data.

The split between historical and contemporary is inline with the BBRS’ initial expectations. However, there is potential for the number of contemporary cases to increase over time as awareness of the service grows and external factors come into play, such as the repayment of Coronavirus Business Interruption Loans (CBILs).

Case Status

As of 31 August 2021, the BBRS had 320 open cases and 255 closed cases. Of these, 247 cases have been closed for reasons unrelated to ineligibility, including the removal of duplicate cases, customer withdrawals or very prolonged customer inaction.

Cases that are closed due to customer inaction are only de-registered following sustained efforts to communicate with customers, and these customers can re-register in the future if they wish to do so.

Of the 320 open cases, 51 newly registered cases were waiting for a customer champion to be allocated.

The BBRS continues to actively work with customers on progressing cases in a timely manner.

Eligibility

The BBRS treats all cases as eligible until we have established the facts relating to each complaint. When a complaint is first assembled, information is collected to check eligibility.

When there is a clear early challenge or lack of clarity, the customer is alerted. Not all cases receive a formal Eligibility Assessment as they progress if they don’t need one, but all are continuously evaluated during case assembly by the allocated customer champion and the Case Assessor. Only those cases where there is uncertainty regarding eligibility will undergo a formal Eligibility Assessment by a Case Assessor.

After a case has received a formal Eligibility Assessment from a Case Assessor, the case may be subject to appeal by either party.

As of 31 August 2021, 338 cases were progressing through the BBRS process and 255 cases had completed their journey. Of the 255 cases, 247 were closed due to factors unrelated to ineligibility such as the removal of duplicate cases, customer withdrawals or closure due to very prolonged customer inaction. As such, the 247 cases did not undergo formal Eligibility Assessments.

Between the launch of the BBRS and 31 August 2021, 33 cases have required a formal Eligibility Assessment.

Reasons for Ineligibility

The chart below is based on the total number of reasons that cases have been found ineligible for the BBRS through formal Eligibility Assessments. The chart below is based on the 33 cases that as of 31 August 2021, had been taken through, or were undergoing, a formal Eligibility Assessment. As some cases are still live, and could be subject to appeal, these totals may change in the future.

Please note that there can be one or more reasons affecting eligibility per case. As at 31 August 2021, 47% of ineligible cases had multiple reasons making them ineligible for consideration.

The most common reason for ineligibility is that a case may be, or may have been, eligible for – or received an outcome from – the Financial Ombudsman Service. The BBRS is not able to review cases that have been through the Financial Ombudsman Service.

The second most common reason is that the act or omission occurred before 2001, or that the complainant has settled the matter previously, or that the complaint was subject to an excluded scheme.

Concessionary Cases

If a case falls outside the BBRS’ eligibility criteria, the BBRS may still be able to consider it provided that we, the customer and the bank all agree. If we are asked to consider a complaint and we believe we should be able to do so (for example because the case falls just outside our eligibility criteria or there is a technical reason why it is ineligible), we will write to the bank, explain why we think we should consider it, and we will ask for their agreement.

The BBRS looks at the option of the concessionary case process in all ineligibility assessments.

As of 31 August 2021 the BBRS had referred three cases to the banks for the concessionary case process.

Determinations

Both parties to a complaint have the opportunity to respond to a Provisional Determination before it is issued. Any responses to the Provisional Determination will be taken into account before the issuing of the Determination.

There have so far been eight Determinations, including a range of outcomes.

Additional details cannot be provided at this stage as the BBRS will only report on closed cases in terms of outcomes.

As of 31 August one case had closed and received a financial award.

Appeals

The BBRS recognises that there may still be some situations in which either a customer or the bank they are complaining about feel there is more to be considered about the case and wish to appeal the whole or part of a Determination. It is also possible to appeal an eligibility decision made at any stage in the process.

Permissible grounds of appeal are:

• Mistakes: If there has been a clear error of fact or law in the decision being appealed.
• New information: If there is new evidence or information relating to the decision that has only become available since the decision was issued.
• Non-compliance with Scheme Rules: If the BBRS, in handling the case, has failed to comply with the Scheme Rules in a material way and this has had a material impact on the outcome.

As of 31 August 2021 the BBRS had received 16 appeals notices in relation to ineligibility assessments. This is out of a total of 33 assessments that had been undertaken to date.

This number is higher than the organisation anticipates experiencing in the future. Many cases were originally registered before the Scheme Rules were agreed, and the BBRS went live. The BRBS believes this has resulted in a higher proportion of ineligibility challenges during its first months of operation.

Of the 16 appeal notices that have been received so far, as of 31 August 2021:

• One appeal has received an outcome
• Eight appeal notices are being considered by an appeal panel
• Two appeals have been denied as they do not meet the grounds required
• Five appeals are being considered on the grounds of appeal

Conclusion

The organisation’s second Quarterly Insights Report shows where progress is being made, particularly in moving cases through the service.

The BBRS’ Scheme Rules allow parties access to all relevant case documentation, with time to consider and comment on submissions, evidence and provisional findings. This approach takes time, but that is time well spent, for the benefit of those seeking resolution.

The BBRS is unusual in that customers were able to register for the service as early as possible, and long before the service launched. More than 400 of the total 626 cases registered before the Scheme Rules were agreed. The Eligibility Conditions in the Scheme Rules were unanimously approved in February 2021 by the Implementation Steering Group (ISG) comprising seven bank representatives, eight representatives of SMEs and an independent Chair

Significant efforts have been made to engage with all registered customers, including cases where customers have not responded to any attempted communications. Although these cases have been closed, the customers are able to re-register with the BBRS in the future should they wish.

Where a case has been found to be ineligible through formal assessment – of which there have been 33 in total – 47% have one or more reasons for ineligibility, such as an existing determination from the Financial Ombudsman Service, not fitting our financial criteria and/or the case being concluded elsewhere.

A fundamental principle has long been that the jurisdiction of the BBRS cannot overlap with the jurisdiction of the Financial Ombudsman Service because it is a statutory body. Nor has the BBRS been established to provide a second opportunity to review a complaint already reviewed elsewhere, or to re-open complaints that have already been settled under another scheme.