ENF 18.5 Applications for variation or revocation of disapplication orders

Under section 329(3) of the Act (Orders in relation to the general prohibition), the FSA may, on the application of the person against whom an order has been made, vary or revoke a disapplication order.

When considering whether to grant or refuse an application to vary or revoke a disapplication order, the FSA will take into account all the relevant circumstances. These may include, but are not limited to:

1. (1)

   any steps taken by the person to rectify the circumstances which gave rise to the original order;

2. (2)

   whether the person has ceased to present the risk to clients and consumers or to the FSA's regulatory objectives which gave rise to the original order;

3. (3)

   the circumstances giving rise to the original order and any additional information which, had it been known by the FSA, would have been relevant to the decision to make the order;

4. (4)

   the amount of time which has elapsed since the order was made.

The FSA will not generally grant an application to vary a disapplication order unless it is satisfied that the proposed variation will not result in the person presenting the same degree of risk to clients or consumers that originally gave rise to the order to disapply the exemption. Similarly, the FSA will not revoke a disapplication order unless and until it is satisfied that the person concerned is fit and proper to carry out exempt regulated activities generally or those specific exempt regulated activities in relation to which the exemption has been disapplied.

Section 331(6) of the Act (procedure on making or varying orders under section 329) provides that if the FSA proposes to refuse an application for the variation or revocation of a disapplication order, it must give the applicant a warning notice. Section 331(7) provides that if the FSA then decides to refuse the application, it must give the applicant a decision notice. The FSA's approach to the issue of warning notices and of decision notices is described in DEC 2.2 (Warning notice procedure) and DEC 2.3 (Decision making procedure). A person whose application for variation or revocation of a disapplication order has been refused, may refer the matter to the Tribunal (see DEC 5.1 (The Tribunal)).