COMP 12.4 The compensation calculation

The FSCS may pay compensation for any claim made in connection with protected investment business which is not:

1. (1)

   a claim for property held; or

2. (2)

   a claim arising from transactions which remain uncompleted at the quantification date;

only to the extent that the FSCS considers that the payment of compensation is essential in order to provide the claimant with fair compensation.

The FSCS must not pay compensation for any claim in connection with protected investment business to the extent that it relates to or depends on:

1. (1)

   a failure of investment performance to match a guarantee given or representation made; or

2. (2)

   a contractual obligation to pay or promise to pay which the FSCS considers to have been undertaken without full consideration passing to the relevant person or in anticipation of possible insolvency; or

3. (3)

   the mere fluctuation in the value of an investment.

If the claimant has an ICD claim against an incoming EEA firm which is an MiFID investment firm5 (including a credit institution which is an MiFID investment firm5), the FSCS must take account of the liability of the Home State compensation scheme in calculating the compensation payable by the FSCS.

If the claimant has a claim in connection with protected investment business relating to the fact that the claimant has:

1. (1)

   while eligible or reasonably likely to become eligible to be a member of an occupational pension scheme, instead become a member of a personal pension scheme or entered into a retirement annuity; or

2. (2)

   ceased to be a member of, or to pay contributions to, an occupational pension scheme, and has instead become a member of a personal pension scheme or entered into a retirement annuity; or

3. (3)

   transferred to a personal pension scheme accrued rights under an occupational pension scheme which is not a defined contribution (money purchase) scheme; or

4. (4)

   ceased to be a member of an occupational pension scheme and has instead (by virtue of such a provision as is mentioned in section 591(2)(g) of the Income and Corporation Taxes Act 1988) entered into arrangements for securing relevant benefits by means of an annuity;

the FSCS must take the steps set out in COMP 12.4.6R.

If COMP 12.4.5R applies, the FSCS must follow the Specification of Standards and Procedures issued by the FSA in October 1994, as supplemented and modified by subsequent guidance issued by the FSA (in particular, that of November 1996) (the 'Specification') in:

1. (1)

   assessing whether a relevant person has complied with the relevant regulatory requirements;

2. (2)

   assessing whether non-compliance has caused the claimant loss; and

3. (3)

   calculating the amount of compensation due (where the FSCS may rely on calculations made by the FCA or any previous regulator of the relevant person);

unless the FSCS considers that departure from the Specification is essential in order to provide the claimant with fair compensation.

Where a claim made in connection with protected investment business relates to an Additional Voluntary Contribution policy advised on or arranged by a relevant person, the FSCS must follow the FSAVC Review Model Guidance issued by the FSA in May 2000 (the "Guidance") in:

1. (1)

   assessing whether the relevant person has complied with the relevant regulatory requirements;

2. (2)

   assessing whether non-compliance has caused the claimant loss; and

3. (3)

   calculating the compensation due (where the FSCS may rely on calculations made by the FCA or any previous regulator of the relevant person);

unless the FSCS considers that departure from the Guidance is essential in order to provide the claimant with fair compensation.

The FSCS may decide to reduce the compensation that would otherwise be payable for a claim made in connection with protected investment business that is not an ICD claim, if it is satisfied that:

1. (1)

   there is evidence of contributory negligence by the claimant; or

2. (2)

   payment of the full amount would provide a greater benefit than the claimant might reasonably have expected or than the benefit available on similar investments with other relevant persons; and

it would be inequitable for the FSCS not to take account of (1) or (2).

3For claims arising in connection with protected contracts of insurance, the FSCS must treat any term in an insurance undertaking's constitution or in its contracts of insurance, limiting the undertaking's liabilities under a long-term insurance contract to the amount of its assets, as limiting the undertaking's liabilities to any claimant to an amount which is not less than the gross assets of the undertaking.

31The FSCS may pay compensation for any claim made in connection with protected home finance mediation 4only to the extent that the FSCS considers that the payment of compensation is essential in order to provide the claimant with fair compensation.

31The FSCS must not pay compensation for any claim in connection with protected home finance mediation 4to the extent that it relates or depends on:

1. (1)

   a failure of investment performance to match a guarantee given or representation made; or

2. (2)

   the mere fluctuation in the value of property

1The FSCS may decide to reduce the compensation that would otherwise be payable for a claim made in connection with protected home finance mediation4 if it is satisfied that there is evidence of contributory negligence by the claimant and it would be inequitable for FSCS not to take account of that fact.

3The FSCS may pay compensation for any claim made in connection with protected non-investment insurance mediation only to the extent that the FSCS considers that the payment of compensation is essential in order to provide the claimant with fair compensation.

3The FSCS may decide to reduce the compensation that would otherwise be payable for a claim made in connection with protected non-investment insurance mediation if it is satisfied that:

1. (1)

   there is evidence of contributory negligence by the claimant; or

2. (2)

   payment of the full amount would provide a greater benefit than the claimant might reasonably have expected or than the benefit available on similar contracts with other relevant persons; and

it would be inequitable for FSCS not to take account of (1) or (2).

6For a claim which falls to be dealt with (or has properly been dealt with) under a consumer redress scheme, the FSCS must apply the scheme in:

1. (1)

   assessing whether a relevant person has complied with the relevant regulatory requirements;

2. (2)

   assessing whether non-compliance has caused the claimant loss; and

3. (3)

   calculating the compensation due (where the FSCS may rely on calculations made by the FCA or other competent persons acting on the FCA's behalf or authorised to make them under the scheme);

   unless the FSCS considers that departure from the scheme is essential in order to provide the claimant with fair compensation.