COBS 20.2 Treating with-profits policyholders fairly

1. (1)

   With-profits business, by virtue of its nature and the extent of discretion applied by firms in its operation, involves numerous potential conflicts of interest that might give rise to the unfair treatment of policyholders. Potential conflicts of interest may arise between shareholders and with-profits policyholders, between with-profits policyholders and non-profit policyholders within the same fund, between with-profits policyholders and the members of mutually-owned firms, between with-profits policyholders and management, and between different classes of with-profits policyholders, for example those with and without guarantees. The rules in this section address specific situations where the risk may be particularly acute.2

2. (2)

   With-profits policyholders have an interest in the whole and in every part of the with-profits fund into which their policies are written and from which the amounts payable in connection with their policies are to be paid. Those amounts include those required to satisfy their contractual rights and such other amounts as the firm is required to pay in order to treat them fairly (including but not limited to the amounts required to satisfy their reasonable expectations).2

3. (3)

   The fair treatment of with-profits policyholders requires the firm's pay-outs on individual with-profits policies to be fair (see COBS 20.2.3 R et seq.) and, if the firm makes a distribution from the with-profits fund into which their policies are written, the receipt by the with-profits policyholders of at least the required percentage (see COBS 20.2.17 R).2

1. (1)

   2Notwithstanding that there may not be a rule in the remainder of this section addressing a particular aspect of a firm's operating practices, firms will need to ensure that they take reasonable care to ensure that all aspects of their operating practice comply with COBS 20.2.1A R.

2. (2)

   For the avoidance of doubt COBS 20.2.1A R does not exhaust or restrict the scope of Principle 6. Firms will in any event need to ensure that their operating practices are consistent with Principle 6.

2When considering the provisions in this chapter a firm will need to ensure that, if applicable, it complies with the with-profits governance requirements in COBS 20.5.

2For the purposes of COBS 20.2.1A R the FCA expects a firm to be able to demonstrate that it has taken reasonable care to ensure its operating practices are fair, including being able to produce appropriate evidence to show that it has followed relevant governance procedures.

In this section, maturity payments include payments made when a with-profits policy provides for a minimum guaranteed amount to be paid.

If it is not fair or reasonable to calculate or assess a maturity payment using the prescribed asset share methodology, a firm may use another methodology to set bonus rates, if that methodology properly reflects its representations to with-profits policyholders and it applies that methodology consistently.

A firm may use its own methodology to calculate surrender payments, but it should have good reason to believe that its methodology produces a result which, in aggregate across all similar policies, is not less than the result of the prescribed asset share methodology. A firm might, for example, test the surrender payments on a suitable range of specimen with-profits policies.

Amounts that might be deducted include:

1. (1)

   the firm's unrecovered costs, including any financing costs incurred in effecting or carrying out the surrendered with-profits policy to the date of surrender, including the costs that might have been recovered if the policy had remained in force;

2. (2)

   costs that would fall on the with-profits fund, if the surrender value is calculated by reference to an assumed market value of assets which exceeds the true market value of those assets;

3. (3)

   the firm's costs incurred in administering the surrender; and

4. (4)

   a fair contribution towards the cost of any contractual benefits due on the whole, or an appropriate part, of the continuing policies in the with-profits fund which would otherwise result in higher costs falling on the continuing with-profits policies.

The provisions dealing with the calculation of surrender payments (COBS 20.2.11 G to COBS 20.2.12 R) do not prevent a firm from setting a target range for surrender payments where the top-end of the range is lower than the top-end of the relevant range for maturity payments.

2If a firm is able to satisfy COBS 20.2.16R (1), then the volume of surrenders, transfers, or other exits from the with-profits fund that there has been, or is expected to be, is a factor that a firm may take into account when it is considering whether to make a market value reduction, and if so, its amount, subject to the limit in COBS 20.2.16R (2).

5References to distributions in COBS 20 includes distributions of distributable profits arising, namely any permanent addition to policy benefits made at the firm's discretion based on the investment or other experience in the fund or more generally. Distributions include those relating to expected payments for which allowance has been made in the technical provisions or to a firm's other liabilities arising from its regulatory duty to treat customers fairly, and not just distributions of any with-profits fund surplus.

5Examples of distributions include any payment of a cash bonus (including a final bonus on exit or a reduction in premium), or a declaration of a reversionary bonus in the form of a permanent addition to the benefits guaranteed to be payable at death or on maturity. In COBS 20.2.21 R and COBS 20.2.22 E (distributions from excess surplus) distributions also include any other amounts that are added to asset shares or to any other measure that is used to determine pay-outs under policies.

2An example of the application of COBS 20.2.17A R, without limitation to its scope generally, is where a firm reduces, for any reason, the amounts of a bonus or of bonus units added to policies in force. The firm should treat this as effectively a ‘negative distribution’, calculated by making the same assumptions regarding discount rates and other relevant factors as would be used for positive bonus additions. The amount so calculated should then be taken into account in ensuring that the amount distributed to policyholders from a with-profits fund is not less than the required percentage for the purposes of COBS 20.2.17 R.

1. (1)

   5If the circumstances in COBS 20.2.19AR (1) or (2) arise, the firm should also consider whether any reduction(s) in the proposed distribution and any previous distributions to with-profits policyholders over a period of at least the last five years are consistent with treating with-profits policyholders fairly and any other obligations of the firm under COBS 20.

2. (2)

   When calculating the amounts distributed in COBS 20.2.19A R and COBS 20.2.19B R:

   1. (a)

      any amount allocated to with-profits policyholders in anticipation of a distribution is treated as included in the next distribution;

   2. (b)

      the amount of any available distributable profits is treated as reduced by any part of it which the firm has decided to carry forward unappropriated; and

   3. (c)

      risk margin associated with technical provisions should be excluded.

3. (3)

   A firm which is not a Solvency II firm is required to comply with IPRU(INS) 3.3.

Rectification payments may include, for example, a payment to a policyholder or former policyholder to correct an erroneous underpayment of policy proceeds, or a reimbursement of premiums overpaid. The effect of COBS 20.2.25B R is that a firm may make rectification payments using assets in a with-profits fund.

COBS TP 2.14 R has the effect that payments of compensation and redress arising out of events which took place before 31 July 2009 are subject to COBS 20.2.23 R to COBS 20.2.25 R as in force at 30 July 2009.

1. (1)

   2Writing new insurance business into a with-profits fund is not, of itself, automatically adverse to the interests of with-profits policyholders. For example, new insurance business which defers the emergence or distribution of surplus to a limited extent for a number of policyholders, or which leads to a marginal change in the equity backing ratio, may, subject to satisfying the guidance in COBS 20.2.60 G and COBS 20.2.29 G, reasonably be considered not to have an adverse effect on the with-profits policyholders in a with-profits fund, if the firm's governing body is satisfied (and can demonstrate based on appropriate analysis) that each new line of insurance business is likely to be financially self-supporting over the periods during which the contracts are expected to remain in force and is likely to add sufficient value to the with-profits fund to offset the cost of acquiring the business.3

2. (2)

   Conversely, if the particular line of new insurance business is priced on loss-making terms or the terms are such that the new insurance business is not likely to generate sufficient value after covering all the costs associated with it (in either case when considered in aggregate over the periods over which the contracts are expected to remain in force), then in the FCA's view, the terms of that insurance business are likely to have an adverse impact on with-profits policyholders interests in the relevant fund.

3. (3)

   Firms will need to ensure that they comply with COBS 20.2.28 R at all times, but in practice firms will be expected to pay particular attention when they are designing and pricing or re-pricing products, when they are preparing their financial plans that take into account their expected costs and levels of new business, and, in particular, when reviewing their financial performance, if that reveals that costs or levels of new business have varied significantly from those expected previously.

4. (4)

   New business for the purposes of COBS 20.2.28 R will not, in general, include increments on existing policies or business written as a result of the exercise of options by an existing policyholder.

In some circumstances, it may be difficult or impossible for a firm to mitigate the risk of an2 adverse effect on its existing, or new, with-profits policyholders, unless it establishes a new bonus series or with-profits fund. Circumstances that might cause a firm to establish a new bonus series or with-profits fund include:

1. (1)

   where the firm has a high level of guarantees or options in its existing with-profits policies, which might place an excessive burden on new with-profits policies, or vice versa; and

2. (2)

   where the potential risks are likely to be so great that a single with-profits fund cannot provide adequately for the interests of new and existing policyholders, even after allowing for any beneficial effects of diversification. Such potential risks are likely to arise from significant differences in the terms and conditions of the new and existing with-profits policies, including the basis on which charges are levied and reviewed.

1. (1)

   When a firm prices the new insurance business that it proposes to effect in an existing with-profits fund, it should estimate the volume of new insurance business that it is likely to effect and then build in adequate margins that will allow it to recover any acquisition costs to be charged to the with-profits fund.2

2. (2)

   COBS 20.2.28 R requires firms to obtain appropriate analysis and evidence and this should include at least a profitability analysis on a marginal cost basis.2

When a firm sets a target volume for new insurance business in an existing with-profits fund, it should pay particular attention to the risk of disadvantage to existing with-profits policyholders. Those policyholders might be disadvantaged, for example, by the need to retain additional capital to support a rapid growth in new business, when that capital might have been distributed in the ordinary course of the firm's existing business.

5Loans to a connected person using assets in a with-profits fund should be considered as investments of assets within the with-profits fund. As such, a Solvency II firm will need to ensure that:

1. (1)

   such loans comply with the PRA Rulebook: Solvency II Firms: Investments having regard to COBS 20.2.35B G; and

2. (2)

   where there is a conflict of interests, in the reasonable opinion of the firm's senior management, they are in the best interests of the with-profits policyholders in the relevant with-profits fund.

1. (1)

   If a firm, or a connected person, provides support to a with-profits fund (for example, by a contingent loan), no reliance should be placed on that support when the firm assesses the with-profits fund's financial position unless there are clear and unambiguous criteria governing any repayment obligations to the support provider.

2. (2)

   The degree of reliance placed on that support should depend on the subordination of the support to the fair treatment of with-profits policyholders and clarification of what fair treatment means in various circumstances. For a realistic basis life firm this would normally be evidenced by the liability for such support being capable, under stress, of a progressively lower valuation in the future policy-related liabilities.

Where assets from outside a with-profits fund are made available to support that fund (and there is no ambiguity in the criteria governing any repayment obligations to the support provider), a firm should manage the fund disregarding the liability to repay those assets, at least in so far as that is necessary for its policyholders to be treated fairly.

When a firm, other than a Solvency II firm,5 determines its investment strategy, and the acceptable level of risk within that strategy, it should take into account:

1. (1)

   the extent of the guarantee in its with-profits policies;

2. (2)

   any representation that it has made to its with-profits policyholders;

3. (3)

   its established practice; and

4. (4)

   the amount of capital support available.

1. (1)

   5A Solvency II firm is required to consider its investment strategy in relation to the assets in a with-profits fund, including any strategic investments, in accordance with the PRA Rulebook: Solvency II Firms: Investments. Firms are expected, in applying the PRA Rulebook: Solvency II Firms: Investments, to take into account the particular circumstances and requirements of the liabilities in the with-profits fund to which those assets relate. For example, a Solvency II firm will need to consider:

   1. (a)

      whether a strategic investment meets the criteria in the PRA Rulebook: Solvency II Firms: Investments; and

   2. (b)

      that the investment will ensure the quality, security, liquidity of the portfolio of assets of the firm as a whole and that the investment(s) are localised to ensure their availability.

2. (2)

   Where there is a conflict of interest (e.g. between the with-profits policyholders and the firm) the firm must ensure that the strategic investment is made in the best interests of policyholders. It is expected that a Solvency II firm applying the provisions in PRA Rulebook Solvency II Firms Investments in this manner will lead to with-profits policyholders being treated no less fairly than if the firm was not a Solvency II firm and was subject to COBS 20.2.35 G and COBS 20.2.36 R.

1. (1)

   2In order for a firm to comply with COBS 20.2.36 R, a firm's governing body should consider:

   1. (a)

      the size of the investment in relation to the with-profits fund;

   2. (b)

      the expected rate of return on the investment;

   3. (c)

      the risks associated with the investment, including, but not limited to, liquidity risk, the capital needs of the acquired business or investment and the difficulty of establishing fair value (if any);

   4. (d)

      any costs that would result from divestment;

   5. (e)

      whether the with-profits actuary would regard the investment as having no adverse effect on the interests of with-profits policyholders as a class;

   6. (f)

      in the case of a proprietary firm, whether it would be more appropriate for the investment to be made using assets other than those in the with-profits fund; and

   7. (g)

      any other relevant material factors.

2. (2)

   A firm should consider whether making or retaining a strategic investment5 should be disclosed to with-profits policyholders.

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3. (3)

   Examples of strategic investments include, but are not limited to, a significant investment in another business or significant real estate assets used within the business of the firm.

If a firm carries out non-profit insurance business in a with-profits fund, it should review the profitability of the non-profit insurance business regularly.

If a firm has reinsured its with-profits insurance business into another insurance undertaking, it should take reasonable steps to discharge its responsibilities to its with-profits policyholders, in respect of the reinsured business. Those steps should include maintaining adequate controls.

Examples of material transactions include:

1. (1)

   a significant bulk outwards reinsurance contract;

2. (2)

   inwards reinsurance of with-profits business from another insurance undertaking;

3. (3)

   a financial engineering transaction that would materially change the profile of any surplus expected to emerge on the with-profits fund's existing insurance business; and

4. (4)

   a significant restructuring of the with-profits fund, especially if it involves the creation of new sub-funds.

1. (1)

   2The aim of the discussions in COBS 20.2.41A R is to:

   1. (a)

      allow the FCA to comment on the adequacy of the firm's planning; and

   2. (b)

      seek agreement with the firm on any other appropriate actions to ensure with-profits policyholders are treated fairly.

2. (2)

   If the firm is no longer effecting a material volume of new with-profits policies (other than by reinsurance) into a with-profits fund; or if it is ceding by way of reinsurance most or all of the new with-profits policies which it continues to effect, then it may also be appropriate to consider whether, in the particular circumstances of the firm, it should be regarded as ceasing to effect new contracts of insurance for the purposes of COBS 20.2.54R (3).

3. (3)

   In the discussions the FCA will have with regard to COBS 20.2.28 R (New business), if the volumes of new business are expected to be profitable and, in relation to non-profit insurance business, it is demonstrated that a fair distribution to with-profits policyholders out of the fund can be achieved and the economic value of any expected future profits is likely to be available for distribution during the lifetime of the with-profits business for the purposes of COBS 20.2.60 G, then, in the FCA's view, it is likely to be reasonable for a firm to be satisfied that there will be no adverse effect for with-profits policyholders, and accordingly that such business may continue to be written.

The firm should include an independent element in the policyholder advocate selection process, which may include consulting representative groups of policyholders or using the services of a recruitment consultant. When considering an application for approval of a nominee to perform the policyholder advocate role, the FCA will have regard to the extent to which the firm has involved others in the selection process.

The precise role of the policyholder advocate in any particular case will depend on the nature of the firm and the reattribution proposed. A firm will need to discuss, with a view to agreeing,2 with the FCA the precise role of the policyholder advocate in a particular case (COBS 20.2.45 R). However, the role of the policyholder advocate should include:

1. (1)

   negotiating with the firm, on behalf of the relevant with-profits policyholders, the benefits to be offered to them in exchange for the rights or interests they will be asked to give up;

2. (2)

   commenting to with-profits policyholders, on:

   1. (a)

      the methodology used for the allocation of benefits amongst the relevant (or groups of) with-profits policyholders and the form of those benefits;

   2. (b)

      the criteria used for determining the eligibility of the various with-profits policyholders;

   3. (c)

      the terms and conditions of the proposals (to the extent that they materially affect the benefits to be offered, or the bonuses that may be added to with-profits policies); and

   4. (d)

      the views expressed by the independent expert or the reattribution expert (as the case may be), and the firm's with-profits actuary on the allocation of any benefits amongst the relevant with-profits policyholders; and

3. (3)

   telling with-profits policyholders, or each group of with-profits policyholders, with reasons, whether the firm's proposals are in their interests.

A firm may include, within the policyholder advocate's terms of appointment, arrangements for the policyholder advocate to be indemnified in respect of certain claims that may be made against him in connection with the performance of his functions. If such indemnity is included, it should not include protection against any liability arising from acts of bad faith.

A reattribution expert's report should comply with the applicable rules on expert evidence. The scope and content of the report should be substantially similar to that of the report required of an independent expert under SUP 18.2 (Insurance business transfers), as if (where appropriate) a reference to:

1. (1)

   the 'scheme report' was a reference to the 'reattribution expert's report';

2. (2)

   the 'independent expert' was a reference to the 'reattribution expert'; and

3. (3)

   the 'scheme' was a reference to the proposal for a 'reattribution'.

1. (1)

   Reattribution and insurance business transfer costs (excluding policyholder advocate costs) should be met from shareholder funds. A firm may present alternative arrangements if it can show good reasons for doing so.

2. (2)

   Shareholders should pay a reasonable proportion of the policyholder advocate's costs.

3. (3)

   If a reattribution proposal is not successful, the FCA would expect the costs of the policyholder advocate to be met by the person initiating the proposal. That will usually be the shareholders of the firm.

2For the purposes of COBS 20.2.54R (3) the FCA will have regard to, amongst other things, the factors set out in COBS 20.2.41BG (3).

1. (1)

   A firm should also include the information described in Appendix 2.15 (Run-off plans for closed with-profits funds) of the Supervision manual in its run-off plan.2

2. (2)

   A firm should periodically review and update its run-off plan and submit updated versions to the FCA when requested to do so.2

When a firm tells its with-profits policyholders that it has ceased to effect new contracts of insurance in a with-profits fund, it should also explain:

1. (1)

   why it has done so;

2. (2)

   what changes it has made, or proposes to make, to the fund's investment strategy (if any);

3. (3)

   how closure may affect with-profits policyholders (including any reasonably foreseeable effect on future bonus prospects);

4. (4)

   the options available to with-profits policyholders and an indication of the potential costs associated with the exercise of each of those options; and

5. (5)

   any other material factors that a policyholder may reasonably need to be aware of before deciding how to respond to this information.

A firm may not be able to provide its with-profits policyholders with all of the information described above until it has prepared the run-off plan. In those circumstances, the firm should:

1. (1)

   tell its with-profits policyholders that that is the case;

2. (2)

   explain what is missing and give a time estimate for its supply; and

3. (3)

   provide the missing information as soon as possible, and within the time estimate given.

1. (1)

   If non-profit insurance business is written in a with-profits fund, a firm should take reasonable steps to ensure that the economic value of any future profits expected to emerge on the non-profit insurance business is available for distribution during the lifetime of the with-profits business.

2. (1A)

   Where a with-profits fund contains assets which may not be readily realisable, the firm should take reasonable steps to ensure that the economic value of those assets is made available as part of a fair distribution to with-profits policyholders.2

3. (2)

   Where it is agreed by its with-profits policyholders, and subject to meeting the requirements for effecting new contracts of insurance in an existing with-profits fund (COBS 20.2.28 R), a mutual may make alternative arrangements for continuing to carry on non-profit insurance business, and a non-directive friendly society may make alternative arrangements for continuing to carry on non-insurance related business. Where a mutual has been granted a waiver in accordance with COBS 20.2.61 G, the agreement of its with-profits policyholders to alternative arrangements for continuing to carry on non-profit insurance business may not be needed.4

1. (1)

   4A mutual operating a common fund may seek to undertake an exercise to identify that part of the fund to which the mutual considers it would be fair for relevant provisions in COBS 20 not to apply.

2. (2)

   To give regulatory effect to the identification exercise, the FCA expects that a mutual will need to apply to the FCA to modify the relevant provisions in COBS 20 and elsewhere which are dependent on the definition of the with-profits fund.

3. (3)

   A mutual will need to demonstrate that the appropriate statutory tests in section 138A of the Act are met. The FCA expects that mutuals will need to do at least the following to allow the FCA to consider whether granting the modification would adversely affect the advancement of the FCA's consumer protection objective:

   1. (a)

      demonstrate that the exercise does not amount to a reattribution;

   2. (b)

      demonstrate that its proposals are fair to its with-profits policyholders, and other relevant policyholders, having regard to the mutual's own particular structure, origins and other relevant circumstances, and including reference to the items in (c) to (j) below;

   3. (c)

      obtain the report of an independent expert approved by, and whose terms of reference are agreed with, the FCA on the terms of the mutual's proposals and the likely impact and effects on, and fairness to, the mutual's with-profits policyholders and other relevant policyholders. This report should consider whether the firm has sufficiently demonstrated the absence of a reattribution under (a). The FCA will consider using its powers in section 166 of the Act (Reports by skilled persons) in appropriate circumstances;

   4. (d)

      demonstrate that the mutual's with-profits policyholders and other policyholders are appropriately engaged and informed about the proposals;

   5. (e)

      demonstrate that it has complied with the relevant requirements in the mutual's constitutional documents, for example that members are appropriately involved in agreeing to any proposals;

   6. (f)

      demonstrate that the mutual has a convincing and robust business case for continuing in business, as opposed to run-off;

   7. (g)

      demonstrate how, and the extent to which, continuing membership rights will benefit with-profits policyholders and other policyholders;

   8. (h)

      explain the nature and terms of any continuing support to be provided to the with-profits fund from outside the with-profits fund;

   9. (i)

      demonstrate that with-profits policyholders under the mutual's proposals will not be at a disadvantage compared to equivalent with-profits policyholders in a proprietary with-profits fund; and

   10. (j)

       explain how it proposes to pay any compensation or redress that is, or may become, due to a policyholder, or former policyholder.

4. (4)

   For the purposes of (3)(a) and (c), where the issues to be considered by the independent expert include the extent or value (in the particular circumstances of the mutual) of the rights and interests of with-profits policyholders in the with-profits fund, the FCA expects the independent expert's terms of reference to require them to take into account other available analyses of such rights and interests which may be more favourable to policyholders than the mutual's own analysis. The FCA considers that any uncertainty in the extent or value of such rights and interests in the case of a particular mutual may mean that the independent expert will need to obtain their own independent legal advice on the issue. In the FCA's view the fact of any uncertainty as to the extent or value of the relevant rights and interests, following receipt of independent legal advice, may itself be taken into account by the independent expert when producing their report. The FCA will consider on a case by case basis what further information it may provide to the expert and/or independent legal adviser to ensure that the rights and interests of policyholders have been appropriately taken into account.

5. (5)

   The FCA expects to consult and/or seek information or advice from the PRA in accordance with section 3D of the Act and the Memorandum of Understanding between the FCA and the PRA required by section 3E. As part of any such process the FCA expects that the PRA will wish to consider, among other things, that balance sheet safety and soundness issues have been identified and addressed appropriately.