A year in review for the Business Banking Resolution Service

A year on the Business Banking Resolution Service (BBRS) has begun reporting data on its activities.

What is the BBRS

The BBRS is a voluntary scheme through which disputes between SMEs and lenders can be resolved without resorting to legal proceedings. As we wrote last year it seeks to plug the gap for complaints by SMEs that may not be appropriate for litigation and that might otherwise be dealt with by the Financial Ombudsman Service (FOS). The BBRS can make decisions that are binding on banks on the basis of what it considers to be fair and reasonable taking into account laws, regulations, guidance and good industry practice.

The BBRS is available to businesses that have a complaint about lending or banking generally and that meet the following criteria, among others:

  • For the contemporary scheme – being events that took place on or after 1 April 2019 – have a turnover of less than £10m and a balance sheet of less than £7.5m
  • For the historical scheme – being events that took place between 1 December 2001 and 31 March 2019 – have a turnover of less than £6.5m and a balance sheet of less than £5m

The numbers

Total complaints received

708

Live complaints

200

Closed complaints

508

Ineligible complaints

48

Concluded and upheld complaints

6

These numbers are as at 31 December 2021 with the exception of the number of ineligible complaints, which is from the 30 November 2021 data

At a total of around 700 complaints the BBRS appears to have received an average of around 70 cases a month but the previous data from August 2021 shows that the majority of complaints (626 in total) had already been received at that date. This suggests a significant pent-up interest in the historic complaints process, that can deal with matters going back to 2001. The BBRS acknowledges this and refers to an advertising campaign in 2021 helping shift the ratio of historical and contemporary complaints.

With an uphold rate of less than 1%, however, the BBRS falls well short of the 39% uphold rate of the FOS for a similar period. The reason for this is difficult to determine because the BBRS does not publish anonymised decisions like the FOS. Given this rate, the BBRS is unlikely, however, to become the main route for businesses to resolve disputes with their lenders and underscores the continuing importance of obtaining appropriate legal advice at an early stage.

While the BBRS is intended to be an informal procedure for SMEs to use directly it is also not without its pitfalls. Of the cases found to be ineligible nearly half were held to be ineligible for the BBRS scheme rules because they were also eligible for the FOS. This is to say that if a complaint is or had been eligible for the FOS, it is ineligible for the BBRS. The FOS is a similar scheme, although not voluntary for FCA-regulated businesses and with a lesser scope to review historic complaints. The BBRS can go back as far as 2001 while the FOS is limited to considering complaints that go back 6 years. Crucially, though the right to bring a FOS complaint is usually lost where it is not brought within 6 months of the bank rejecting a complaint made to it. It is therefore important to properly assess your options early on as once the BBRS has made an ineligibility decision the 6 months for making a FOS complaint may well have passed.

Equally, while the BBRS may decide cases based on what it considers to be fair and reasonable it will also have regard to legal considerations. It is therefore important to frame any complaint not only by reference to a business’ perceived experience but also by reference to the law. These legal complaints will likely also be carried over to any court proceedings in the event that the BBRS’s decision is not satisfactory and it is therefore important that they are correctly formulated from the start.

If you have any questions about complaints arising from business banking or would like to speak to one of the lawyers in our commercial litigation team please click here to speak to a member of the team.

 

Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.