A key element of a faster payments system is the finality of payment. Once the payer sends the payment (called an authorized push payment, or APP), it's pretty much gone for good. This finality provides a number of valuable benefits to both sender and receiver. But what if the sender has been deceived into authorizing a payment or simply makes an error in the payment destination instructions? In a March 2020 post, I discussed the growing concern in the United Kingdom about consumer liability for APPs. That concern resulted in regulatory action offering potential liability relief to consumers deceived into making such payments.
In an APP scam, a payer is tricked into transferring funds to a fraudster through an electronic payment. We have written in previous posts (including this one) about these advance fee scams; they involve people getting a call notifying them that they've won a lottery or owe delinquent tax payments, or they are asked by someone they've met through a dating site or service to send money. In the United States, once consumers have authorized such transactions, they are generally not protected from these losses by existing consumer protection regulations.
However, in the United Kingdom, the incidence rate for these APP scams reached such a level in 2017 that banking authorities took action. The financial services trade association UK Finance began collecting APP scam-fraud data and in January 2018 produced a best practices standards document to improve the identification and reporting of APP scams. The trade association noted that for 2019, losses from APP scams were £456 million (approximately US$581 million), compared to £354.3 million (approximately US$468.7 million) in 2018.
Also in 2018, the Financial Conduct Authority (FCA)—the United Kingdom's financial services regulator—began a series of regulatory changes intended to provide consumers with additional rights in APP disputes. Initially, APP fraud claims were directed to the consumer's financial institution, a payment service provider (PSP). The FCA concluded that the PSP receiving the funds was in a better position to investigate the situation and changed its guidelines to mandate including the receiving PSP in the investigation process.
The biggest shift occurred in May 2019, when the FCA launched a voluntary code regarding APP scams. The code, according to the industry group UK Finance, says that "any customer of a bank or payment service provider (PSP) which is signed up to the Code will be fully reimbursed if they fall victim to an APP scam, provided they did everything expected of them under the Code." Under the code, a PSP is deemed to be at fault if it has not developed prevention (customer education) and detection programs. Although the code is labeled "voluntary," all the major U.K banks have been required to adopt it. There continue to be efforts in the British Parliament to mandate that all financial institutions, regardless of asset size, adopt the code.
In 2019, there were a reported 122,437 cases of APP fraud reported in the United Kingdom. These cases, which totaled £101 million in losses, were reviewed under the provisions of the code. Of that total, £41.3 million, or 41 percent, was reimbursed to the consumer. My reading of the code makes it seem very subjective; it appears that if the victim didn't believe it was a scam at the time they initiated the payment, they should be reimbursed. The FCA documents concede that there isn't a specific checklist to make such a determination but that each case should be decided on an individual basis—a compliance official's worst nightmare.
In an effort to preempt an unauthorized APP from taking place, the United Kingdom's retail payment operator (Pay.UK) introduced its Confirmation of Payee service in 2019. This service checks whether or not the payee name attached to the APP is the same name on the account receiving the payment. Originally mandated to be operational by July 2019, the deadline for adoption by the six major banks was extended to March 31, 2020. Then, because of the COVID-19 pandemic impact, the deadline was again extended, this time to June 30, 2020, although some of the big banks have already implemented the service.
As APPs gain popularity in the United States with faster payments and P2P services, what is the likelihood that similar protections will be extended to consumers here? Let us know what you think.