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22 Oct 2020

Post-Brexit law change could help banking scam victims

Which? urges government to force banks to sign up to reimbursement code

The government should introduce new laws to protect people from losing life-changing sums of money to bank transfer fraud after the Brexit transition period is over, Which? has urged.

Currently, 18 banks are signed up to a voluntary code of conduct that should see victims of bank transfer scams - which involve you sending money to a fraudster from your bank account to theirs - reimbursed.

Not all banks are signed up, and the regulator that oversees payments can't force banks to follow the code because of a European law currently adopted in the UK.

Which? believes that the current code is failing victims of these scams. It's being applied inconsistently, leaving customers facing a lottery when it comes to getting their money back - with many victims of sophisticated scams still denied reimbursement.

Find out more about how a post-Brexit rule change could help victims and what to do if you've caught out by this type of scam.

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How do bank transfer scams work?

A bank transfer scam is sometimes referred to as an authorised push payment (APP) scam, which sees you being tricked into sending money to a fraudsters banks account.

Fraudsters often impersonate trusted organisations - such as banks, HMRC or other government departments - and use sophisticated techniques to win your confidence and send money to them.

This can be through convincing text messages, emails or telephone numbers spoofing those that belong to the real institutions.

A common scam involves a criminal pretending to be from your bank's fraud team, warning you that you need to move your money to a safe account, which actually belongs to the fraudster.

How are banks supposed to protect you from these scams?

A voluntary code of conduct was introduced in May last year, which would see you reimbursed by your bank if you fell victim to this type of scam and you aren't to blame. Banks also have duties to protect you and should reimburse you if they've fallen down on any of these steps, including:

  • Educating customers about APP scams
  • Identifying higher-risk payments and customers who are vulnerable and so have a higher risk of becoming a victim
  • Providing effective warnings to customers if the bank identifies an APP scam risk - these could be messages when you go to make a payment or set up a new payee
  • Talking to customers about payments and even delaying or stopping payments where there are scam concerns
  • Acting quickly when a scam is reported to it
  • Taking steps to stop fraudsters opening bank accounts.

If your bank is part of the code, it will confirm whether it will reimburse you within 15 business days and the reimbursement should come without delay.

Should the bank need more time to investigate, it can't take more than 35 business days (roughly seven weeks).

If you're not happy with how the banks that are involved - either the one from where the money was sent or the bank that received the funds - have dealt with your case, you can complain to the Financial Ombudsman Service.

How big is the problem with bank transfer scams?

The latest figures show that more than £200m was lost to this type of fraud in the first six months of 2020. But despite the introduction of the code of conduct, 38% was reimbursed to victims. That's a fall on the second half of 2019, when 41% was returned.

In August, Which? published a report alleging that scam victims were facing a lottery when it came to getting their money back, with banks applying the code poorly and inconsistently.

Reimbursement rates by individual banks, which have been published by the Payment Systems Regulator anonymously, fluctuate dramatically, with one firm fully reimbursing just 1% of victims, whereas another had fully reimbursed 59%. Which? believes the current lack of consistency means many customers face a lottery when it comes to trying to get their money back.

Which? has intervened multiple times to help victims who have been told they won't be reimbursed, frequently helping overturn banks' original decisions. We wouldn't have to do this if the code was being implemented fairly and consistently.

Currently, TSB is the only bank to reimburse victims of scams, with no questions asked -unless they have been involved in the fraud or wildly reckless in the process of being scammed. The Payment Systems Regulator, which oversees payments, can't currently make reimbursement mandatory.

Why could Brexit help scam victims?

In its response to the Treasury's review of the payments landscape, Which? has outlined how changes to legislation could allow regulators to require all banks to follow a statutory code offering strong protections for scam victims.

The Payment Systems Regulator says that it currently lacks the powers to take action on reimbursement, because of the EU Second Payment Services Directive. This law prohibits EU member states - and the UK, during the transition period - from forcing payment service providers to go beyond the terms set out in the Directive.

As a result, the regulator argues that it can't currently require reimbursement to be made to victims of bank transfer scams.

A change in legislation would provide the regulator with the power to direct the Faster Payments Scheme, which facilitates bank transfers, to introduce a new guarantee into its rules that includes protection for victims of APP fraud - similar to the guarantee in place for direct debits.

As members of Faster Payments are required to follow the rules of the scheme, this would ensure that the code is adopted across the industry

Which? believes that by making these changes, the government can show that it will use the legal flexibility resulting from Brexit to benefit consumers - and could potentially cut the amount consumers lose to bank transfer fraud by tens of millions of pounds a year.