DEC 2.3 Decision notice procedure

The decision maker will consider any representations made in accordance with DEC 4.4 in relation to a warning notice which has already been given. A decision will be stated in a decision notice or (where appropriate) a notice of discontinuance or other written notice. The decision notice sets out the terms of the decision. A specimen decision notice for enforcement cases is at DEC 2 Annex 6 G.

In accordance with section 388 of the Act (Decision notices), the decision notice must:

1. (1)

   be in writing;

2. (2)

   give the FSA's reasons for its decision to take the action to which the decision notice relates;

3. (3)

   state whether section 394 of the Act (Access to FSA material) applies (see DEC 2.4);

4. (4)

   if that section applies, describe its effect and state whether any secondary material exists to which the person concerned must be allowed access under it; and

5. (5)

   give an indication of:

   1. (a)

      any right given by the Act to have the matter referred to the Tribunal; and

   2. (b)

      the procedure on referring a case to the Tribunal.

In the case of a proposed refusal of an application for approval under section 59 of the Act, the FSA must give a decision notice to all interested parties (see DEC 2.2.3 G).

In the case of a decision notice concerning a notification of a proposed change in respect of an ICVC, the FSA must give a decision notice to the depositary as well as to the ICVC, if the depositary received the warning notice (see DEC 2.2.4 G).

The decision maker may decide to take action different from that proposed in the warning notice. However, under section 388(2) of the Act, that action must be made under the same Part of the Act as the action proposed in the warning notice.

Under section 388(3) of the Act, following the giving of a decision notice but before the FSA takes action to which the decision notice relates, the FSA may give the person concerned a further decision notice relating to different action concerning the same matter. Under section 388(4) of the Act, the FSA can only do this if the person receiving the further decision notice gives his consent. In these circumstances the following procedure will apply:

1. (1)

   FSA staff will recommend to the decision maker that a further decision notice be given, either before or after obtaining the person's consent;

2. (2)

   the decision maker will consider whether the action proposed in the further decision notice is appropriate in the circumstances;

3. (3)

   if the decision maker decides that the action proposed is inappropriate, he will decide not to give the further decision notice. In this case, the original decision notice will stand and the person's rights in relation to that notice will be unaffected. If the person's consent has already been obtained, the FSA will notify him of the decision not to give the further decision notice;

4. (4)

   if the decision maker decides that the action proposed is appropriate then, subject to the person's consent being (or having been) obtained, a further decision notice will be given;

5. (5)

   a person who had the right to refer the matter to the Tribunal under the original decision notice will have that right under the further decision notice. The time period in which the reference to the Tribunal may be made will begin from the date on which the further decision notice is given.

For the purpose of establishing whether the person receiving the further decision notice gives his consent, the FSA will normally require consent in writing. If the person concerned is an individual, the FSA will normally require a letter or signed memorandum from him recording his consent. If the person concerned is a body corporate or partnership, the FSA will normally require a letter or signed memorandum on behalf of the body corporate or partnership stating its consent.

If the FSA decides not to take action proposed in a warning notice or the action to which a decision notice relates, section 389 of the Act (Notices of discontinuance) requires the FSA to give a notice of discontinuance to the person to whom the warning notice or decision notice was given. (Section 389 of the Act does not apply if the discontinuance of the proceedings results in the granting of an application made by the person to whom the warning notice (or decision notice) was given.)

A notice of discontinuance:

1. (1)

   must identify what proceedings are being discontinued (section 389(3)); and

2. (2)

   must state that the FSA may publish information about the matter if the person to whom the notice of discontinuance is given consents (section 391(2)).

Where the FSA is required to give a person a copy of a notice of discontinuance (see DEC 2.4.10 G), the copy must be accompanied by a statement that the FSA may publish information about the matter, so far as relevant to the person to whom the copy is given, if that person consents.

Under section 390 of the Act (Final notices), the FSA must give a final notice to the person to whom it has given a decision notice:

1. (1)

   if the matter was not referred to the Tribunal within the period of 28 days of the date when the decision notice was given, or within any other period that may be prescribed in the Tribunal rules, in which case the FSA will give a final notice at the same time as it takes the action to which the decision notice relates;

2. (2)

   if the matter was referred to the Tribunal within the period of 28 days of the date when the decision notice was given, or within any other period that may be prescribed in the Tribunal rules, in which case the FSA will give a final notice at the same time as it takes action in accordance with any directions given by the Tribunal or the Court under section 137 of the Act (Appeal on a point of law).

A final notice sets out the terms of the statement, order, penalty or other action, and will give details of the date when the action takes effect.