ICOB applies in accordance with the rules2 in the remainder of this chapter.

1. (1)

   The purpose of this chapter is to set out to whom, for what activities, and within what territorial limits the rules, evidential provisions and guidance in ICOB apply. The purpose of other chapters in ICOB is set out at the beginning of each chapter.

2. (2)

   ICOB implements, in part, provisions contained in a number of EC directives, including2:

   1. (a)

      the Insurance Mediation Directive, in respect of non-investment insurance contracts;

   2. (b)

      the Distance Marketing Directive, in respect of non-investment insurance contracts and distance non-investment mediation contracts;

   3. (c)

      the Consolidated Life Directive, in respect of cancellation rights and information requirements relating to non-investment insurance contracts which are pure protection contracts;

   4. (d)

      the Third Non-Life Directive, in respect of information requirements relating to general insurance contracts; and

   5. (e)

      the Fourth and the Fifth Motor Insurance Directives1, in respect of claims made by injured parties1 arising from motor accidents1 in the EEA.

      1111
3. (3)

   This chapter also provides guidance on the application of other parts of the Handbook to an insurance intermediary that carries on insurance mediation activities to which ICOB applies.

1. (1)

   The definition of insurance intermediary includes an insurer when the insurer is carrying on insurance mediation activities, for example when, through its sales force, it advises on or arranges its own non-investment insurance contracts or those of another insurer.

2. (2)

   In relation to (1), insurers should note that INSPRU 1.5.13 R9 prevents an insurer from carrying on an insurance mediation activity in respect of a third party's products, unless the insurer can show that there is a natural fit or necessary connection between the insurer's insurance business and the third party's products.3

   9
3. (3)

   Firms which outsource regulated activities are reminded of the guidance on outsourcing in SYSC 3.2.4 G and the rules in SYSC 8.84

   8

A table summarising the application of the various chapters of ICOB to firms is set out in ICOB 1 Annex 1 G. For the detailed application of each chapter, see the application rule at the start of that chapter.

All chapters of ICOB are relevant to a firm that deals with a retail customer. Certain chapters of ICOB apply in part only or not at all if a firm is dealing with a commercial customer. Guidance on the term retail customer is set out in ICOB 1.7.3 G(1).

1. (1)

   7In ICOB 2 (General rules) and ICOB 7 (Claims handling) (and in ICOB 1 (Application and purpose) in respect of those chapters), a customer is a policyholder or a prospective policyholder. Otherwise, only a policyholder or prospective policyholder who makes the arrangements preparatory to him concluding the contract of insurance (directly or through an agent) is a customer.

2. (2)

   A policyholder includes anyone who, upon the occurrence of the contingency insured against, is entitled to make a claim directly to the insurance undertaking.

1. (1)

   An insurer must comply with the following ICOB requirements, which are applicable to insurers as product providers, if its non-investment insurance contracts are sold through an intermediary to whom ICOB does not apply (because the intermediary is not a firm) or if its non-investment insurance contracts are connected contracts:

   1. (a)

      ICOB 2 (General rules (including unfair inducements));

   2. (b)

      ICOB 3 (Financial promotion) if the insurer communicates or approves a financial promotion;

   3. (c)

      ICOB 4.7 (Unsolicited services);

   4. (d)

      ICOB 5 (Product disclosure) as explained in ICOB 5.2;

   5. (e)

      ICOB 6 (Cancellation) except for general insurance contracts and connected contracts that are not distance contractsICOB 6.1.5 R (5) and (6); and

   6. (f)

      ICOB 7 (Claims handling).

2. (2)

   The circumstances in (1) may occur where article 72B of the Regulated Activities Order excludes certain regulated activities from regulation when carried on by providers of non-motor goods and services related to travel in relation to connected contracts. Guidance on the conditions that need to be satisfied by connected contracts is contained in PERG 5.11.13G to PERG 5.11.15G5.

   5

Other parts of the Handbook apply where relevant to an insurance intermediary within ICOB 1.2.8 R, including Principle 7 (Communications with customers) instead of ICOB 2.2.3 R, which restates Principle 7 in slightly amended form.

2A provision in ICOB that applies to an insurer when acting as product provider or as a motor vehicle liability insurer applies where relevant in relation to contracts of large risks where the risk is located within the European Economic Area.

1. (1)

   Compliance by an authorised professional firm with provisions of the Distance Marketing Regulations is dealt with in PROF 5.4 .

2. (2)

   The effect of ICOB 1.2.10 R(4) is that if the relevant designated professional body of an authorised professional firm does not make rules implementing articles 12 and 13 of the Insurance Mediation Directive11 applicable to authorised professional firms those authorised professional firms will need to comply with those sections of ICOB which implement articles 12 and 13 of the Insurance Mediation Directive11, namely ICOB 4.1to ICOB 4.4 and ICOB 4.8.

   1111

1. (1)

   All chapters of ICOB are relevant to a firm that deals with a retail customer unless ICOB 1.2.15 R applies. Certain chapters of ICOB apply in part only or not at all if a firm is dealing with a commercial customer.

2. (2)

   A policyholder7 includes a member of a group policy who did not conclude the group policy with the insurance undertaking but who is entitled under the terms of that policy to make a claim on the insurance undertaking. This would include a dependant of a policyholder member of a group policy if that dependant has a direct right to claim. Where a customer7 concludes7 a group policy, 7only limited provisions in ICOB will apply to other policyholders7 as specified in ICOB 1.2.15 R and by the definition of customer7.

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3. (3)

   A person whose right or interest in a contract of insurance that is a group policy does not entitle him to make a claim directly to an insurance undertaking (for example, because he is required to make his claim to an employer or trustees) is not a customer or a policyholder7.

4. (4)

   ICOB 5.3.29 R and 7ICOB 5.4.8 R provide for customers7 who conclude group policies to be given a policy summary, unless the customer is a commercial customer and there is no policyholder who is capable of being a retail customer7, and to be informed that they should give that policy summary to each policyholder who is capable of being a retail customer7.

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5. (5)

   ICOB 1.2.15 R applies regardless of how a person becomes a policyholder under a group policy, for example automatically as part of a contract of employment, or voluntarily as part of a flexible benefits package.

The restriction in ICOB 1.3.6 R reflects the fact that the provisions of the Distance Marketing Directive will be for the country of origin of the insurance intermediary to enforce. This is the state of the firm's establishment (head office or branch) carrying on the insurance mediation activity.

1. (1)

   1The provisions in ICOB 1.3.11 R are the minimum provisions required for the implementation of articles 12 and 13 of the Insurance Mediation Directive4.

   4
2. (2)

   The effect of ICOB 1.3.10 R is to apply these minimum provisions to firms in respect of their insurance mediation activities passported under the Insurance Mediation Directive4 if other EEA States have not implemented articles 12 and 13 of the Insurance Mediation Directive4 for those activities.

   44
3. (3)

   Firms are reminded that insurers have passporting rights under the Insurance Directives but not under the Insurance Mediation Directive4, and so ICOB 1.3.10 R does not apply to insurers.

   4

A table summarising the application of the Handbook to firms carrying on insurance mediation activities is set out in ICOB 1 Annex 2 G. For the detailed application of each module, see the application provision at the start of the module, or its chapter or section.

1. (1)

   Although ICOB does not apply directly to a firm'sappointed representatives, a firm will always be responsible for the acts and omissions of its appointed representatives in carrying on business for which the firm has accepted responsibility (section 39(3) of the Act). In determining whether a firm has complied with any provision of ICOB, anything done or omitted by a firm'sappointed representative (when acting as such) will be treated as having been done or omitted by the firm (section 39(4) of the Act).

2. (2)

   ICOB 8.5 (Cancellation requirements) does not apply to a distance non-investment mediation contract entered into by an appointed representative itself to provide insurance mediation activity services to a retail customer. Regulation 9 (Right to cancel) to 13 (Payment for services provided before cancellation) of the Distance Marketing Regulations apply instead. See also ICOB 1.7.3 G (4) (guidance on distance non-investment mediation contracts).1

3. (3)

   Firms should refer to SUP 12 (Appointed representatives), which sets out requirements which apply to firms using appointed representatives.

The purpose of ICOB 1.7.2 G and ICOB 1.7.3 G is to provide:

1. (1)

   guidance on the application of parts of the Distance Marketing Regulations for non-investment insurance contracts and distance non-investment mediation contracts; and

2. (2)

   guidance on expressions in ICOB derived from the Distance Marketing Directive.

ICOB implements most of the Distance Marketing Directive for non-investment insurance contracts that are distance contracts and for distance non-investment mediation contracts. However, certain aspects of the Distance Marketing Directive are implemented by provisions of the Distance Marketing Regulations, which apply in addition to ICOB, in particular:

1. (1)

   Regulation 12 (Automatic cancellation of an attached distance contract); and1

2. (2)

   Regulation 14 (Payment cards).1

ICOB adopts certain expressions derived from the Distance Marketing Directive, as follows:

1. (1)

   Retail customer

   1. (a)

      The Distance Marketing Directive applies to 'any natural person who is acting for purposes which are outside his trade, business or profession'. In ICOB the term 'retail customer' has been adopted. In practice, private individuals may act in a number of capacities. In the FSA's view, a customer will be a commercial customer and not a retail customer if he is an individual acting, for example:

      1. (i)

         as trustee of a trust such as a housing or NHS trust;

      2. (ii)

         as member of the governing body of a club or other unincorporated association such as a trade body and a student union;

      3. (iii)

         as pension trustee;

      4. (iv)

         as a person taking out, or who has taken out, a non-investment insurance contract relating to property bought under a buy-to-let mortgage;

      5. (v)

         as partner in a partnership when taking out insurance for purposes wholly related to his profession.

   2. (b)

      Examples of individuals who would be regarded as retail customers include:

      1. (i)

         personal representatives, including executors, unless they are acting in a professional capacity, for example, a solicitor acting as executor; and1

      2. (ii)

         private individuals acting in personal or other family circumstances, for example, as trustee of a family trust.1

2. (2)

   Distance contract

   1. (a)

      To be a distance contract, a contract must be concluded under an 'organised distance sales or service-provision scheme' run by the contractual provider of the service who, for the purpose of the contract, makes exclusive use (directly or through an insurance intermediary) of one or more means of distance communication2 up to and including the time at which the contract is concluded. So:

      2
      1. (i)

         the insurance intermediary must have put in place facilities designed to enable a retail customer to deal with it exclusively at a distance, such as facilities for a retail customer to deal with it purely by post, telephone, fax or the Internet. If an insurance intermediary normally operates face-to-face and has no facilities in place enabling a retail customer to deal with it customarily by distance means, the Distance Marketing Directive2 will not apply. A one-off transaction effected exclusively by distance means to meet a particular contingency or emergency will not be a distance contract; and

         2
      2. (ii)

         there must have been no simultaneous physical presence of the insurance intermediary and the retail customer throughout the offer, negotiation and conclusion of the contract. So, for example, contracts offered, negotiated and concluded over the Internet, through a telemarketing operation or by post, will normally be distance contracts. A retail customer may visit the local office of the insurance intermediary in the course of the offer, negotiation or conclusion of a contract with that insurance intermediary. Wherever, in the literal sense, there has been "simultaneous physical presence" of the insurance intermediary and the retail customer at the time of such a visit, any ensuing contract will not be a distance contract.

   2. (b)

      The mere fact that an intermediary (acting for the insurance undertaking or for the retail customer) is involved, does not make the sale of a financial product or service a distance contract.

3. (3)

   Conclusion of a contract

   1. (a)

      A contract is concluded when an offer to be bound by the non-investment insurance contract has been accepted. An offer in the course of negotiations (for example, an offer by an insurance undertaking to consider an application) is not an offer to be bound, but is part of a pre-contractual negotiation. A customer will provide all the information an insurance undertaking needs to decide whether to accept a risk and to calculate the premium. The customer may do this orally, in writing or by completing a proposal form. The response by an insurance undertaking, giving a quotation to the customer specifying the premium and the terms, is likely to amount to an offer of the terms on which the insurance undertaking will insure the risk. Agreement by the customer to those terms is likely to be an acceptance which concludes the contract. In other cases where the insurance undertaking requires a signed proposal form (for example, some pure protection contracts), the proposal form may amount to an offer by the customer on which the insurance undertaking decides whether to insure the risk and in such cases the insurance undertaking's response is likely to be the acceptance.

   2. (b)

      Where the parties to a contract agree that insurance cover should commence before all the terms and conditions have been agreed, the customer should be provided with information required by rules in ICOB to be provided before conclusion of the contract to the extent that agreement has been reached.

4. (4)

   Distance non-investment mediation contracts

   1. (a)

      Some of the services which some insurance intermediaries provide will themselves fall within the scope of the Distance Marketing Directive. ICOB 8 applies to an insurance intermediary which enters into a distance non-investment mediation contract with a retail customer. The FSA expects the requirements in ICOB 8 to be relevant in a small minority of cases. ICOB 8 will not apply in the typical case where an insurance intermediary sells an insurance contract to a retail customer on a one-off basis, even if the insurance intermediary is involved in the renewal of that contract and handling claims under it. ICOB 8 will also not apply if an insurance intermediary, in its terms of business, makes clear that it does not, in conducting insurance mediation activities, act contractually on behalf of, or for, its retail customer, in which case the insurance intermediary can proceed on the basis that no distance non-investment mediation contract will arise.

   2. (b)

      ICOB 8 is only relevant if both of the following conditions are satisfied:

      1. (i)

         an insurance intermediary concludes a distance contract with a retail customer covering its insurance mediation activities which is additional to any insurance contract which it is marketing;

      2. (ii)

         the insurance intermediary's distance contract is concluded other than merely as a stage in the effecting or carrying out of an insurance contract by the firm or another person, in other words it has some continuity independent of an insurance contract, as opposed, for example, to being concluded as part of marketing an insurance contract.

   3. (c)

      An example of a distance non-investment mediation contract would be a distance contract under which an insurance intermediary agrees to provide advice on a retail customer's insurance needs as and when they arise.