Duty to report on payment practices: What do the first 10,000 reports tell us?

Last year, GoCardless covered the duty to report on payment practices and performance legislation.

In our article, we noted that, whilst the regulations came into force in April 2017, the reporting obligation was linked to each company’s financial year, so not everyone within scope was required to take action immediately. And it wasn’t entirely clear that all involved were fully aware of that fact, as the regulations had not been particularly widely publicised.

Several high-profile cases, such as Carillion (which collapsed while owing £2 billion to 30,000 suppliers) and House of Fraser (which went into administration, owing its suppliers £484 million, according to documents from EY), have put the issue of prompt payment further into the spotlight.

What, then, is the current state of play now that the regulations are fully in force?

Back in 2017, it was estimated that some 15,000 companies would be required to report on their payment practices and performance. Around this time last year only 350 reports had been published. That has since risen to almost 10,000.

The quality of available data is also on the up, with far fewer blank entries in response to specific questions around longest and shortest payment periods. That said, there are still a few instances of companies having reported excessively lengthy standard payment terms, presumably in order to report that they have paid 100% of suppliers “on time”.

“This is not exactly in the spirit of the regulations and we wonder whether the regulators will be taking a closer look in due course,” says Oliver Kidd, Senior Associate, Stevens & Bolton LLP.

Rather embarrassingly, it recently emerged that the number of businesses receiving late payments from the government’s own Cabinet Office has tripled in the past two years.

Late payments by the Cabinet Office - those tendered beyond 30 days - have affected 198.7% more firms from the period between April to June 2016 and April to June 2018, rising from 76 to 227 companies, as reported by City A.M. This is apparently due to a switch to a new computer platform.

Elsewhere, however, encouragingly, fewer than 10% of reporting companies claim to take longer than 60 days on average to pay their suppliers. Almost a third of all reporting companies claim to do so within 30 days, which is the target period of the Prompt Payment Code and other supplier industry groups.

In the 30 to 60-day bracket, the greatest number of companies seem to be paying on day 30 (314) with the lowest number of companies paying on day 60 (64). This is perhaps unsurprising given 30 days is the target payment period of the Prompt Payment Code, and seems to reflect a reasonable commercial position in many circumstances.

Cultural shift

It remains to be seen, however, if the reported figures reflect reality on the ground. Suppliers will be hoping to see a cultural shift towards companies wanting to agree reasonable payment terms with them and wanting to pay on time.

The publication of these reports is not having too much effect on the way small businesses engage with larger organisations, argues Mark Greatholder, Managing Associate, Foot Anstey.

“Often those larger organisations have a significant amount of bargaining power and will simply cease doing business with any smaller companies that do not fall in line,” he adds. “The attraction of working with a larger organisation and the opportunities that such a relationship might bring is often worth the sacrifice to smaller players,” he says.

As for the quality of the data, his views are mixed. It is very difficult to get a sensible balance between keeping the reports relatively succinct in order to ensure they are reader-friendly and do not create a disproportionate administrative burden on the reporting companies, whilst at the same time ensuring that they contain enough information to make them meaningful.

“It can also be difficult to fully understand the payment practices of those larger organisations based on the reports published given that, in additional to a number of standard terms, they often have a significant number of other contracts that are not on standard terms, which potentially allows those companies to hide behind their standard terms,” he comments.

Building up nicely

Nonetheless, the initiative is a step in the right direction. Smaller businesses now have some information available to them to help them understand the payment practices of larger organisations that they are dealing with and this can help them agree sensible payment terms.

As we stated earlier in this article, the duty to report legislation had a slow start back in 2017 and the lack of available data submitted initially was evidence of that. In addition to a lack of awareness and understanding of the regulations, companies perhaps took the decision to focus on more pressing regulatory matters, including the EU General Data Protection Regulation (GDPR).

But the data has built up nicely. It has recently been reported that the amount owed to smaller businesses in late payments has more than halved since 2012.

That said, the level of late payment debt owed to SMEs remains too high and many have no choice but to trade on terms which are too long, imposed on them by larger customers.

As a further attempt to improve the situation for SMEs, the government recently announced a strengthening of the voluntary Prompt Payment Code by the introduction of a new Compliance Board tasked with investigating poor payment performance by signatories to the Code.

Additionally, the Department for Business, Energy & Industrial Strategy (BEIS) has issued a call for evidence seeking views on what more the government can do to create a responsible payment culture. Both moves signify that more can be done to tackle the issue of persistent late payment.

Stepping stone towards greater measures

It seems to be recognised that smaller businesses are more affected by late payments than larger businesses and that often those smaller businesses do not have adequate financial controls or monitoring processes in place to manage the payment of invoices in an efficient way.

The new regulations do not really address these issues. Granted, there is much more that smaller businesses could be doing to streamline their invoicing processes in order to support and improve cash collection, but perhaps this initiative would be more effective if there were greater incentives on larger organisations to pay their suppliers on time.

“It is encouraging to see the initiative gaining traction, but it has to be seen as a stepping stone towards greater measures to protect smaller organisations if it is to achieve the objectives that was implemented to help deliver,” says Mark Greatholder.

The regulators stopped short of prescribing maximum payment terms or criminalising the act of persistent late payment by way of fines or other sanctions. Instead the regulations impose a requirement for transparency that is intended to promote a culture of better payment practices. Only time will tell if this softer approach works or whether suppliers will be ruing the regulators for only imposing a reporting duty rather than attacking poor payment performance head on.

There is currently a government consultation aimed at assessing the impact of the Duty to Report and considering what more can be done to promote good payment practice. “We await the findings with interest and it seems it is only a matter of time before we start to see enforcement action for failing to report when required or reporting misleading or false information,” says Oliver Kidd.

“Whilst it now seems that the vast majority of companies with a reporting duty have submitted a report, any enforcement action will no doubt prompt any remaining companies that have so far failed to comply. Whilst we are not aware of any enforcement action having been taken so far, failing to report when required or reporting misleading information attracts criminal liability and potentially hefty fines, so the regulators have the powers required to ensure compliance across the board,” he concludes.