In the construction industry, the practice of retentions is the withholding of money in lieu of outstanding work. In domestic terms, it’s basically a hedge against snagging. However, this has come to be abused and used as a way of holding back money to help bolster contractor balance sheets. Applied across many suppliers, to a single contractor it can amount to a large sum of money. Essentially it can become a form of late payment.
In the UK the construction industry is hemorrhaging almost £1m each working day, £4.5m a week, £20m a month, mostly from SMEs. Following the Carillion liquidation, there is an unprecedented campaign from industry calling on the government to act.
Proposals to stop the abuse of retentions have been made before, but in January 2018 the Aldous Bill passed its first reading unopposed. The Bill seeks to amend the Construction Act, to ensure that retention monies are held in a third-party trust account thereby leaving them less vulnerable to abuse.
To put this in perspective, abuse of retentions has been legislated against in many other countries, including the USA, Germany, France, New Zealand, Australia and Canada. The U.K. is lagging behind.
The bill has 12 parliamentary sponsors across all parties. It is supported by more than 110 MPs, again across all parties and it has official support from more than 70 trade and industry bodies of which The Prompt Payment Directory is one.
The bill goes for its second reading in the House of Commons on Friday 27th April.
Back in May last year I did some PR for the Prompt payment Directory and as part of that I ran a survey which looked at the human cost of late payment. The results were pretty startling with 29% of business owners saying they had suffered from some form of mental illness such as stress or anxiety.
Not only that but 36% had forgone their salary at one point or another while 21% had been unable to pay their mortgage or had to sell their home.
Losing something as fundamental as your home or having to take your children out of a school because a customer hasn’t paid your invoices is about as rough as it can get and yet this is happening all the time to a large number of business owners throughout the country.
Around the same time as I did my research study the fsb also published some research of their own basically saying that late payment was responsible for the closure of 50,000 businesses a year and cost the U.K. economy £2.5bn
Those too are pretty sobering numbers and yet still they didn’t really make national news.
Now Carillion has imploded and all of a sudden the nation is very aware of the cost of late or non payment and how it can affect small businesses, and yet this has been going on for years.
The first thing that comes to mind is that as a result of Carillion’s mess there will be some parents that will have some some very worrying times ahead of them and their children shouldn’t have to suffer for the crap job that Carillion’s top brass did in running that company.
The second thing that comes to mind is whether or not the chronic issue of late payment will move up a notch on the ladder of public and political consciousness and stay there or whether it will quietly slip back down again and continue life as the iceberg issue I wrote about in this post a couple of years ago.
We are having our “Titanic” moment in the context of late payment and as a very sad result there will be some families (hopefully not many) that will be devastated by it. We’ll need to remember this moment and redouble our efforts in terms of corporate governance and supplier due diligence to make sure it doesn’t happen again and keep the self employment dreams of millions of talented people alive for many years to come.
That means suppliers looking to charge interest on late payments can add an extra 0.25% on top of top the maximum 8.25% they can already charge. Sadly that is not going to move the needle.
The average beyond terms debt is c. £16k, that means the average supplier can charge an average of £40 extra on the average debt. Unfortunately that’s a below average size disincentive and is probably not going to make much difference to the thinking of most debtors.
As Philip King, the CEO of the CICM said recently at the Telegraph newspaper’s Festival of Business, “there is no silver bullet” [re: the matter of late payment].
Mr King went on to say that to get paid on time it is important businesses know who they are dealing with, including whether their client is a limited company or a sole trader, what their reputation is like and if they’re in good financial health.
His comments wer’re supported by remarks from Richard Gilkes the Managing Director of Sort Chemicals who said :
“The majority of our customer base is (sic) SMEs and we have good payers and bad payers”
In other words late payment is not just a them vs us / big vs small issue, it is endemic across the business community.
Without wanting to come across as being in the least bit smug, this exactly what The Prompt Payment Directory has been saying for ages.
U.K. bosses also agree that a mix of government action and peer presssure should be brought to bear on the matter.
In other words the business community needs to help itself. Again, not just what The Prompt Payment Directory has been saying but indeed the very premise on which it was set up.
Mr Uppal, once a small business owner himself, will have some first hand knowledge of the difficulties faced by small businesses in the UK. In his role as the Small Business Commissioner one of his primary tasks will be to help tackle the endemic problem of late payment within the UK business community.
The scale of the problem is variously estimated to be between £45bn and as much as £255bn in outstanding beyond terms debt. As Small Business Commissioner Mr Uppal will have three problems in relation to late payment that he will need to resolve:
Taking the last first, as cited in an article on Businessadvice.co.uk 76% of the UK’s small businesses, when asked in a survey by the website, said that they did not think the office of the SBC would make the slightest bit of difference to their payments situation while 21% thought it might have a little impact.
Research conducted by accounting software supplier FreeAgent revealed that 57% of respondents didn’t know at the time that there was even such a position to be filled.
The SBC will have some powers to name and shame in extreme circumstances but in many cases it will act as either a mediator or more likely a signpost to other services that creditors may use to recover money owed to them. Given the scale of the issue in the UK it seems hard to imagine how the SBC will not be inundated with requests for help the minute it is up and running.
Mr Uppal will need a few very quick high-profile wins in order to establish credibility and confidence among the small business community.
Owing to the sheer the scale of the outstanding debt the SBC has a long way to go and Mr Uppal will need all the tools he has at his disposal. However it’s uncertain just how effective those powers will be given the main role of the SBC will be that of an advisory / signposting nature and in a few cases a mediator. While some serious offenders may be “named and shamed” these are unlikely to be many and possibly not enough to cause the larger beasts of UK industry to take fright.
Perhaps his hardest task will be to change the culture in the UK. The Prompt Payment Code, a voluntary scheme managed by Chartered Institute of Credit Management (CICM), has largely proven to be ineffective. The scale of the unpaid debt has vacillated year on year as new data is released but overall the trend has been an upwards one.
The media are fond of portraying the problem as a David and Goliath situation, with David playing the part of the small business creditor and Goliath playing the part of the large multinational debtor.
In truth while some large organisations are wilfully using their suppliers as free banking services to help massage their stock price, small businesses are just as likely to pay their suppliers late (it must be said, partly due to the supply chain cascade effect) and indeed some small business suppliers are as likely to be the architects of their own misery due to lax credit control and invoicing practices.
All of this means that Mr Uppal’s office will have to walk on egg shells while finding a path which strikes a balance that is tough on genuine offenders, supportive of smaller businesses and creditors, effective in delivering results and does not drive large organisations from these shores just as Brexit bites.
In a few months time he may well need a drink.
However, Mike Cherry, the national chairman of the FSB (Federation of Small Business) was at least cautiously optimistic in his assessment of the
potential impact on curbing late payment.
His comments, while a little vanilla, reflect the forward looking perspective of the FSB.
“Today’s corporate governance reforms includes a positive package of measures to improve the situation. Steps such as obliging the board members of big businesses to report on how they are fostering relationships with suppliers, as well as a new Financial Reporting Council (FRC) principle for greater engagement with suppliers and others, will make a difference…..
“If today’s package of measures, together with the Duty To Report on payment practices and the imminent appointment of a Small Business Commissioner do not shift the dial on late payments, then this will need to be looked at.”
BUT, “The Dial” hasn’t really been changing much for quite a while. Granted these reforms are new and need time to bed in but can they honestly be considered such a big step forward from the Prompt Payment Code (PPC)?
The issue is that, as with the PPC, emphasis is being placed exclusively on larger organisations to get their house in order. These are companies with generally unlimited resources and very strong political lobbying ties.
The government is unlikely to want to rock the boat for these organisation because while some of them may pay pitifully low corporation tax, they do at least provide jobs from which the govt. can levy it’s personal income tax revenue.
Jobs also result in political vaccination headlines around areas like falling unemployment rates and rising consumer confidence and while Brexit is going on nobody wants bad news coming out of the corporate sector.
Small businesses need to do more to help themselves and our research shows that they are trying:
The more businesses that take action for themselves the louder the message will be that the small business / supplier community will no longer accept the situation as it stands.
At The Prompt Payment Directory we are not declaring war, in fact nothing could be further from it, we are simply saying that rating the payment behaviour (good or bad) of customers right the way across the UK business community is the best way to bring about the transparency that the government seeks but in a fair and balanced way.
Due to late payments SME business owners:-
Over a quarter (29%) of UK SME owners struggle with depression, anxiety, increased stress and other serious mental health related issues caused by the worry of late payments.
More than a third (34%) regularly lose sleep over poor cash flow caused by clients paying late and 7% even claim to have lost their hair because of the anxiety.
The research commissioned by The Prompt Payment Directory (PPD), a new payment behaviour rating website, comes amidst Labour’s plan to crackdown on late payments to SMEs and follows the enforcement on 6th April of the Government’s new ‘Duty to Report’ scheme that requires large companies to report on payment practices twice a year.
The survey polled 1,000 UK small to mid-sized company owners who all suffer from poor cashflow due to late or outstanding invoice payments. The research examines the personal, financial and business impact of late payments.
According to the FSB the UK’s poor payment culture costs the UK economy £2.5 billion each year and has forced 50,000 small companies out of business. 30% of invoices are paid late and, as PPD’s research reveals, more than a third (36%) of business owners are sacrificing their own salary as a result.
A lack of income caused by poor cashflow into the business because of late payments, is affecting the life of SME business owners outside of work.
Nearly a quarter (21%) struggle to pay their mortgage or rent or have been forced to sell the family home.
17% have re-mortgaged their home and 7% have taken out a payday loan to raise capital. More than a quarter (26%) have been refused credit and nearly a quarter (24%) have had to sell assets such as shares, pension plans and even the car to make ends meet.
The consequence of these late payment pressures is also destroying people’s marriage, family and social lives.
Nearly a fifth of SME owners combined say that poor cash flow from late payments has put significant pressure on their marriage/relationship (12%) or caused it to fail (6%). 7% have put on hold plans to grow their family, get married or go on honeymoon, 13% have removed their children from private school or can no longer afford to pay for school trips, clubs or tuition, and 1% have even rehomed the family pet because of the cost.
Many (28%) have cut back on their social activity like going to the cinema, eating out or drinks with friends; cancelled their family holiday; and cut down on family parties and celebrations.
Late payments have also led to tough changes to the business, reveals PPD’s research.
More than a third (36%) have paid their staff late, stopped or delayed bonuses, while nearly 10% have ceased staff perks like company phones, cars or health insurance, and cancelled staff social events including the Christmas party. Nearly a third (29%) claim that staff morale, recruitment and retention has been affected.
Despite countless sacrifices, 18% of SMEs are on the brink of bankruptcy or liquidation due to late payments. Nearly half (42%) have been forced to take out a business bank loan to cover the outstanding payment.
More than a quarter (29%) struggle to pay the business rates with 21% struggling to pay the office mortgage/rent, and 18% have been refused a company loan due to poor credit score. A lack of cash means nearly a fifth (17%) of businesses are in desperate need of refurbishment with 14% unable to afford to replace out-of-date or broken equipment and furniture.
Small businesses are hitting back against late payers.
22% have blacklisted such customers and 39% enforce a late penalty fee. A quarter (24%) have sought a County Court Judgement and more than a third (35%) have either used a debt collection agency or law firm, or an alternative low cost cash flow recovery service.
Hugh Gage, Managing Director of The Prompt Payment Directory, comments, “The financial implications of late payments have been well reported over the years but our research delves deeper into the repercussions of poor cashflow to reveal how it affects and even destroys people’s health and lives.
“The Government’s Duty to Report is a welcome step in tackling late payments but it has its limitations,” continues Hugh.
“Only large companies are required to report and only twice a year, but late payment isn’t simply an issue between small suppliers and large customers. According to recent Labour party figures, a hundred and sixty thousand small firms were forced to pay their own suppliers late because of delayed payments. Our research echoes these findings, with 26% of SME owners claiming that late payments are either made by smaller suppliers or a mix of large and smaller organisations.”
“Also, the Duty to Report requires debtors to report on their own payment practices which is counter intuitive, plus an absence of context behind the reasons for the late payment makes it harder for small businesses to reach decisions before entering contractual relationships.”
“To end the UK’s poor payment culture, we need greater transparency throughout the entire supply chain and to encourage best practice which is why we’ve set up The Prompt Payment Directory, so all companies can be rated on their payment behaviour whether good or bad, and by those that are affected – their suppliers,” concludes Hugh.
It will only apply to businesses that match two or more out of three qualifying criteria, they are:
A quick look at a cross section of businesses that have been rated on The Prompt Payment Directory reveals many of them are not household names so we’d expect there’s a reasonable chance they would not be required to report via the govt’s initiative. This points to the fact that late payment isn’t simply an issue between small suppliers and large customers.
While we support the government’s initiative and agree that late payment often starts at the top of the supply chain, evidence shows that it’s far from limited to that narrow band of businesses.
As such the duty to report will expose only part of the issue, however to extend it to all businesses in the UK or even mid sized businesses would be to place a costly bureaucratic burden on British businesses, a significant proportion of which are prompt payers.
Information is split into three parts referred to in the guidance notes as ‘Narrative’, ‘Statistics’ and ‘Statements’, they cover the following:
Invoices that have been received within the reporting period but remain unpaid need not be included in the statement.
“Any invoices that are received but not paid in the reporting period should be recorded in the reporting period in which they are paid. For example, if an invoice was received in the middle of the reporting period and was not paid before the end of the reporting period, it would not be included in the figures for that report.”
This suggests that invoices which have terms of 30 days but are received 15 days prior to the end of the reporting period should rightly be excluded from the statement, however invoices with terms of 30 days which were received 45 days prior to the end of the reporting period can also be excluded from the statement.
That’s not so bad in light of the fact that businesses must also report on the percentage of invoices that are beyond terms and remain unpaid in the reporting period. But,
‘If an invoice was already overdue at the beginning of the reporting period, it should not be included.’
This suggests that if an invoice was received in H1, went overdue and remained unpaid at the end of the H1 reporting period it would be reported against as part of the percentage of invoices that were beyond terms but remain unpaid during the reporting period, BUT when it rolls over into the next reporting (H2) period it would fall off the radar.
In conjunction with the above mentioned rule stipulating that any invoice due within a reporting period but still unpaid should not be included in the calculation for the percentage of invoices that were paid beyond terms, this means that an overdue invoice can only be included (one way or another) in the reporting process once no matter how long it remains unpaid for. This presents a potential loophole, albeit a small one.
It is understandable that the duty to report should be fair to both the companies that must furnish the reports and the suppliers, however, the absence of context means that the data supplied shows what has happened but not why it has happened, and so the transparency becomes somewhat clouded.
The ‘why’ is what helps suppliers make decisions when entering into new contracts.
Businesses are are only required to report every six months. Understandably to push for greater frequency would add an extra burden; initially a quarterly reporting period was mooted but this was pushed back on for that reason.
However, a change in behaviour on the part of the customer will take longer to be reflected, this is bad for suppliers if the change is for the worse and bad for the business making the statement if the change is for the better.
As already mentioned above, there is no context around the data organisations are being asked to supply such as wether an invoice was disputed, or incorrectly submitted – eg. no PO.
That means larger organisation may be required to report in invoices that were quite legitimately paid late. It would be pretty hard for that kind of information to be supplied in the reporting process but it’s just that kind of contextual information that is most useful to any potential supplier.
In situations where the percentage of late paid invoices may be high, for any organisation to report and publish such data is a counter beneficial thing to be doing and it leads to the obvious question of how it will be audited.
The guidance does not explain this but it does stipulate that anybody who is concerned that a business might not have complied or may have made a false statement can either contact / challenge the business directly or contact the Department for Business, Energy and Industrial Strategy.
This suggests the hope is the auditing process will be crowdsourced by the supplier community.
The penalties for non-compliance are strong and include a criminal offence and a fine for the directors or nominated partner of an LLP.
The initiative is very welcome and perhaps most importantly it raises the expectation among suppliers that they should seek and be able to find information that can help them make informed decisions before they go into contract negotiations with new customers.
But, the absence of context will make it harder to reach those decisions and this is where The Prompt Payment Directory can make a difference. Additionally, The Prompt Payment Directory gives suppliers the right to reply by allowing them to rate customers on a sliding scale according to their propensity to pay as well as a variety of other contextual metrics.
Of course for suppliers that are already owed money other remedies will be needed. Smaller businesses with tighter budgets and that are owed sums of less then £10k (or even larger sums) can use Cashflow Rescue, a low cost legal solution to recovering debt. Businesses with deeper pockets can go to specialist solicitors such as Lovetts.
Most importantly, suppliers can increasingly expect to be able take action for themselves to limit the risk of late payment ever occurring in the first place and this is the lowest cost and least stressful solution of all.
The idea is that information provided by large organisations will be made publicly available and subsequently act as a deterrent to those that think they might be able to get away with late payment, in turn harming the suppliers that are on the (non) receiving end.
The premise of this deterrent is based on a couple of assumptions:
These assumptions are an over simplification.
In the context of late payment, large organisations are held up as pariahs because British people tend to sympathise with smaller put-upon underdogs, but the truth is late payment is rife throughout the supply chain and some underdogs are just as culpable although they tend to pass the blame up the supply chain by excusing their behaviour on account of them not being paid by their customer(s).
The exact nature of what will have to be reported on and the corresponding metrics to be used have yet to be fully clarified although this form released almost a year ago could give some indication. However, the important question remains one of context, i.e. ‘why are customers paying their bills late?’
Firstly, any company required to report on it’s own late payment is essentially carrying out a counter beneficial action and is unlikely to do so with a spring it its step and indeed they may find ways to drag their heels.
Secondly, as is quite often the case with instances of late payment, admin and bureaucracy are the cause, it’s not always intentional malfeasance. So while large organisations will be required to clarify the extent of their late payment, there is less likely to be any focus on why payment was made late and therefore little or no distinction between intentional and unintentional late payment.
The reality behind this second point helps nobody. Suppliers need to understand if they are going to do business with a company that pays late and they need to know if the reasons reflect an institutionalised mindset or an administrative overburden or any number of other possibilities.
Asking the customer why they pay late is unlikely to yield anything useful but asking a supplier what reasons they have been given by a late paying customer is more likely to surface useful context. In fact it makes more sense for suppliers to make a contribution of this nature.
Every year it is lamented that both the volume of debt which remains unpaid beyond terms and the number of days it takes for suppliers to get paid are growing. Additionally Government policy moves slowly and no organisation would voluntarily report on their payment practices. This leaves suppliers, i.e. those that are owed the money; these are the people and organisations that now need to step in and become part of the solution as well.
Suppliers can help drive the culture of change that is needed by rating the payment practices of their customers not just in circumstances where it is bad but also in circumstances where it is good. Transparency is the tonic that will solve this problem and by focussing on both positive and “less positive” instances of payment it stands to benefit both suppliers and customers – the latter especially so come April when they will be asked to report on themselves in only a negative way and quite probably with no context.
In summary the letter:
So in short, the PPC is still taking a pretty softly softly approach to the matter.
In his supporting blog post Philip King pointed out that the PPC had handled challenges raised in respect of outstanding invoices “worth nearly £2m[!]” and that the “vast majority” of these cases had been resolved more quickly on account of the PPC’s intervention.
We applaud these efforts but we are a little hesitant about the scale of the achievement. £2m (over two years = £1m pa) out of a total outstanding debt of >£40bn = only c. 0.05% of the problem.
Mr King went on to say that following PPC intervention in some of these cases, resultant insight demonstrated that the causes of the late payment were quite often pretty benign issues such as:
When presented at a more senior level following representation by the PPC invoices have been paid quickly. This is perhaps a little disingenuous, any buyer who has the Prompt Payment Code come knocking isn’t likely to dig their heels in unless they have a very good reason.
However this demonstrates something that we at The Prompt Payment Directory have always advocated, i.e. that late payment is not always about intentionally poor corporate responsibility (although we accept that this does exist).
It’s exactly this kind of contextual information that The Prompt Payment Directory brings to the surface for the befit of both suppliers and buyers.
Finally Mr King points out in his post that experience suggests suppliers who raise the issue about late payment by customers do not necessarily risk alienating those customers. The truth is only the suppliers know the reality but at The prompt Payment Directory we don’t think it should be an issue, regardless.
Using The Prompt Payment Directory suppliers can anonymously rate customers on a 1-5 scale according to the nature of the relationship and the payment process. In circumstances where payment was late, explanations can be given.
Crucially, buyers that make a concerted effort to pay their suppliers on time can also encourage them to leave (positive ratings) on The Prompt Payment Directory and of course, assuming that they do indeed pay on time, a positive profile will quickly be established.
This offers the perfect antidote to the perception that buyers, and in particular larger organisations, will find ways of massaging the output required in their forthcoming duty to report on their late payment practices.
In an age when crowdsourced data is increasingly used to solve all manner of problems, The Prompt Payment Directory offers just such an opportunity here.
First impressions still count for a lot and books are often still judged by their covers (in spite of warnings to the contrary). As such we found that The Late Payment Directory didn’t adequately reflect the aspirations of the site.
The intention is, and will always be, to make a positive contribution without providing a platform for complaints and we want this to be reflected right from the outset in the name that we’ve given the directory.
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It’s well known that suppliers are wary of speaking up about issues of late payment for fear of retribution in the form of cancelled contracts or non-renewal of expired contracts.
This seems like an odd dichotomy: why risk the health and livelihoods bound up in a business by seeking to continue trading with customers that don’t pay on time? It’s a matter of first principles thinking, if a contract or business situation threatens the existence of a supplier then either the situation must change or be ended.
Of course the answer to that question is more nuanced.
Scale of opportunity, working relationships, contractual circumstances, human error (on both sides) are just some of the contextual aspects that can come into play when suppliers consider the cause and effect of an instance of late payment; it isn’t always simply down to poor corporate governance on the part of the customer.
We want the service to not only cater for the contextual nuance surrounding late payment (as it has always sought to do), we want it to do more to achieve that objective right from the outset.
To do that we’ve changed not only the name but also how the site works with the aim being to aggregate a more balanced dataset.
Via a five point scale users can now rate companies across three key aspects of the business relationship:
As with before, where some contributors may be issuing lower ratings due to late payment, we also encourage them to supply the explanation given for the delay in payment.
Together with questions relating to the presence of purchase order numbers, the delivery status of the goods or services being supplied and whether or not the invoice is under dispute, we process the data to provide a more balanced impression of the risk level.
Contributors still remain anonymous and in return for their first contribution they receive a full 12 months subscription for free.
The whole principle behind the directory remains focussed on the safe and responsible sharing of crowdsourced data which will help all parties become better informed and reduce the risk of invoices being paid late either by accident or design. To view an example click here.
Our fresh approach reflects a far more nuanced understanding of this area of corporate governance.
Above all else we want to promote good corporate governance relating to the payment of commercial debts by encouraging organisations of all sizes and verticals to nurture a positive image on The Prompt Payment Directory. With government initiatives such as the duty to report slowly grinding into reality the need for balance will be greater still.
The Prompt Payment Directory remains exactly the same as the Late Payment Directory in its aims, the only difference being that The Prompt Payment Directory seeks to present those aims in the more positive light they have always been intended.
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In the months and years to come we want The Prompt Payment Directory to grow into the “go-to” destination for businesses looking to understand more about their clients and customers in relation to the vital issue of cashflow.
We also want those same clients and customers to see their presence on the The Prompt Payment Directory as a positive reinforcement of their commitment to good corporate governance in relation to the issue of supplier payment.
Our development plan reflects this objective and we look forward to implementing it and to helping UK businesses make better decisions that strengthen their trading relationships instead of weaken them.