MCOB 4.4A Initial disclosure requirements
Description of a firm’s services in all cases
Range of products
- (1)
The limitations in MCOB 4.4A.1 R include any limitations on the regulated mortgage contracts the firm will consider from within the relevant market. A firm which is offering services to a customer in respect of more than one type of relevant market must describe its services in relation to each such relevant market.
- (2)
For these purposes, there are two relevant markets for regulated mortgage contracts (apart from lifetime mortgages): one for regulated mortgage contracts that are not for a business purpose; and one for regulated mortgage contracts that are. A firm offering services in relation to loans for a business purpose must make that clear in its disclosure under MCOB 4.4A.1R (1).
- (3)
If a firm will not, as part of its services, consider direct deals, it need not treat that as a limitation in its product range, but the firm must tell the customer as part of the disclosure under MCOB 4.4A.1R (1) that it will not consider direct deals.
- (1)
A firm that only offers products from one part of a relevant market (for example, just bridging loans) should not disclose its service as unlimited.
- (2)
When considering whether there are any limitations in its product range across the relevant market, a firm need not take account of the existence of exclusive deals which a mortgage lender offers to be sold by one or a limited number of mortgage intermediaries only (and not generally by mortgage intermediaries across the relevant market).
- (1)
If a firm is not offering to the customer products from an unlimited range from across the relevant market, its disclosure on product range in MCOB 4.4A.1 R must either:
- (a)
list the names of all the mortgage lenders whose products it is offering; or
- (b)
inform the customer of the number of mortgage lenders whose products it is offering and that he has the right to request a list of those mortgage lenders.
- (a)
- (2)
If a customer requests the list in (1), the firm must provide it in a durable medium as soon as possible following the request and in any event within five business days. The list must also indicate whether the firm offers all of the products generally available from each mortgage lender on the list.
A firm may be able to describe its product range as unlimited even if it offers its customers only a selection of the regulated mortgage contracts available from the relevant market, or uses ‘panels’. The firm would need to ensure that any panel, or selection of products, is sufficiently broad in its composition that it is representative of products from across the market, that it is reviewed regularly, and that its use does not materially disadvantage any customer. In such a case, a firm should ensure that its analysis of the market and of the available regulated mortgage contracts is kept adequately up to date. For example, a firm would need to update its selection of regulated mortgage contracts if it became aware that a regulated mortgage contract had become generally available offering an improved product feature, or a better interest rate, when compared with the regulated mortgage contracts currently in the firm's selection.
The disclosure required by MCOB 4.4A.1R (1), MCOB 4.4A.2R and MCOB 4.4A.4R(1) about limitations in product range and direct deals should be expressed in simple, clear terms. A firm may wish to consider using a sentence appropriate to the circumstances, along the following lines:
• “We are not limited in the range of mortgages we will consider for you.”
• “We offer a comprehensive range of mortgages from across the market, but not deals that you can only obtain by going direct to a lender.”
• “We only offer mortgages from [number] lender(s). We can provide you with a list of these.”
• “We only offer mortgages from [name of lender(s)].”
• “We only offer some, but not all, of the mortgages from [number] lender(s). We can provide you with a list of these.”
• “We only offer some, but not all, of the mortgages from [name of lender(s)].”
• “We only sell bridging finance products from [name of lender(s)]. We do not offer products from across the mortgage market.”
- (1)
Firms are reminded that, in the light of the rules and guidance in SYSC, they should have adequate systems and controls in place to ensure that the disclosure they make to a customer about their service reflects the service the customer is actually offered.
- (2)
Firms are also reminded that Principle 7 (Communications with clients) and MCOB 2.2.6 R (Clear, fair and not misleading communications) are also relevant to how they describe their services, including in any business name they adopt. For example, a firm should not call itself an “independent mortgage adviser” unless its product range across the relevant market is unlimited.
- (3)
A firm that offers a different service for different product types should not disclose that it offers one type of service for its business as a whole. For example, a firm that provides independent advice on retail investment products but only offers a limited range of regulated mortgage contracts should ensure it discloses to the customer that the service is different for the different products.
- (4)
There are additional rules about complying with MCOB 4.4A.1R (1) in relation to home purchase plans and equity release transactions at MCOB 4.10.3B R and MCOB 8.3.2B R.
Basis of remuneration
- (1)
The information about the basis of remuneration required by MCOB 4.4A.1R (2) must include all relevant information, including the following details:
- (2)
The details in (1)(a) must be expressed, where possible, as a specific cash sum, but the following rules apply where this is not possible:
- (a)
If the firm will charge a fee that is a percentage of another sum which is not yet known (such as, but not limited to, the amount to be borrowed), the firm must provide details of the percentage and a representative illustrative example which gives an amount as a cash sum.
- (b)
If the firm will charge one of a range of possible cash fees, the firm must provide a description of the fee in terms which include the maximum and minimum possible fees as cash sums, and what factors will determine where in the range the fee will be.
- (c)
If the firm will charge one of a range of fees that are a percentage of another sum which is not yet known (such as, but not limited to, the amount to be borrowed), the firm must provide details of the minimum and maximum percentages and a representative illustrative example which gives an amount as a cash sum, and set out what factors will determine where in the range the fee will be.
- (d)
If the firm will charge an amount based on an hourly rate, but the number of hours to be spent on the customer's transaction is unknown, the firm must state the hourly rate in cash terms and set out what factors will determine how many hours it takes to provide the firm's services.
- (a)
Method of providing initial disclosure in all cases
The information required by MCOB 4.4A.1 R, MCOB 4.4A.2 R, MCOB 4.4A.4R (1)and MCOB 4.4A.8 R must be communicated clearly and prominently, and in doing so:
- (1)
if the initial contact includes spoken interaction, the information must be communicated orally; and
- (2)
if the initial contact does not include spoken interaction, the messages must appear separately from other messages in the communication.
If the initial contact is made by electronic means, the firm must ensure that the customer cannot progress to the next stage of the sale unless the information has been communicated to the customer.
- (1)
In order to comply with MCOB 4.4A.9 R for an internet sale, a firm should display the required information on a screen which the customer must access as part of the sales process. It would not be sufficient for the information to be accessible only by giving the customer the option to click on a link or download a document. The messages could be displayed clearly on one of the initial pages which the customer accesses.
- (2)
In a postal sale, a firm may comply by setting out the messages in a clear covering letter.
- (3)
Where the initial contact is by email, SMS or instant messaging, the messages could be displayed clearly and prominently early on in the body of the email, SMS or instant messaging.
- (4)
For face-to-face and telephone contact, a firm should comply by building the messages into the initial oral discussion with the customer.
A firm may demonstrate compliance with MCOB 4.4A.9R(1) by, for example, undertaking one or more of the following: building a requirement for oral communication of the relevant information into its training of staff as evidenced by its training and compliance manuals; inserting appropriate prompts into paper-based or automated sales systems; and having procedures in place to monitor compliance by staff with that rule. What is required in each case will depend on all the circumstances.
Timing of initial disclosure in all cases
The information required by MCOB 4.4A.1 R, MCOB 4.4A.2 R, MCOB 4.4A.4R (1) and MCOB 4.4A.8 R must be provided during the course of the initial contact.
- (1)
In many cases, MCOB 4.4A.12 R means that information will be given at the time of the first contact between the firm and the customer. However, there may be circumstances, for example in relation to a loan for a business purpose, where the possibility of the customer entering into, or varying the terms of, a regulated mortgage contract is only identified after preliminary discussions. The relevant disclosure is only required once this possibility is identified.
- (2)
MCOB 4.4A.12 R does not require a firm to provide the information specified in that rule when a customer contacts a firm simply to arrange to receive services in relation to a regulated mortgage contract at a later time, such as when a customer books an appointment. In those cases, the initial disclosure should be made when the firm first makes contact with the customer with a view to actually carrying out the services. However, firms should note the additional disclosure requirements in MCOB 4.5 (Additional disclosure for distance mortgage mediation contracts with retail customers), and the need to ensure that the required information is provided in good time (see MCOB 4.5.3 G (1)).
Principle 7 and MCOB 2.2.6 R also mean that, if initial disclosure has been given but any of the information in it (for example the basis on which the firm will be remunerated) subsequently changes, the firm should bring this clearly to the customer's attention.
Instances where initial disclosure need not be given
The information requirements in MCOB 4.4A.1 R, MCOB 4.4A.2 R, MCOB 4.4A.4R (1) and MCOB 4.4A.8 R do not apply where:
- (1)
the information has already been provided by the firm and the firm has good reason to believe that it is still accurate and appropriate for the customer; or
- (2)
the information has already been provided by the firm which first made contact with the customer in respect of the particular regulated mortgage contract, and the firm subsequently making contact with the customer does not expect to alter or replace the product range or basis of remuneration described in that information.
A mortgage lender should provide the information in the provisions referred to in MCOB 4.4A.15 R in a direct sale but need not do so where the sale is through a mortgage intermediary. If a number of different firms are involved in relation to the transaction, having regard to MCOB 2.5.4 R (2), those firms should take reasonable steps to establish that the customer has been provided with the information as required by this section.
Additional disclosure where initial contact is by telephone
If the initial contact is by telephone, then the firm must also, before proceeding further, give the name of the firm and (if the call is initiated by or on behalf of the firm) the commercial purpose of the call.
Additional disclosure where the services are to be provided to a consumer under a distance contract
Where a firm provides services to a consumer by way of a distance contract, the firm must provide the consumer with the following information in a durable medium in good time before the distance contract has been agreed:
- (1)
the information which is required by MCOB 4.4A.1 R to MCOB 4.4A.8 R;
- (2)
whether or not the firm will be providing the consumer with advice;
- (3)
the name and the main business of the firm, the geographical address at which it is established and any other geographical address relevant for the consumer's relations with the firm;
- (4)
an appropriate statutory status disclosure statement (see GEN 4), a statement that the firm is on the Financial Services Register and its FCA registration number;
- (5)
the total price to be paid by the consumer to the firm for the financial service, including all related fees, charges and expenses, and all taxes paid through the firm or, when an exact price cannot be indicated, the basis for the calculation of the price enabling the consumer to verify it;
- (6)
the arrangements for payment and for performance;
- (7)
how to complain to the firm, whether complaints may subsequently be referred to the Financial Ombudsman Service and, if so, the methods for having access to it, together with equivalent information about any other applicable named complaints scheme;
- (8)
whether compensation may be available from the compensation scheme, or any other named compensation scheme, if the firm is unable to meet its liabilities, and information about any other applicable named compensation scheme; and
- (9)
any other contractual terms and conditions of the distance contract .
- (1)
MCOB 4.4A.18 R contains the additional disclosure requirements for firms providing mortgage mediation activities to a consumer by way of a distance contract. MCOB 4.5 and MCOB 4.6 contain further rules and guidance applicable where firms enter into a distance contract in respect of their home finance mediation activities independent of any contractual arrangement with a consumer relating to a particular home finance transaction or transactions.
- (2)
There is guidance on distance contracts and consumers at MCOB 1.3.5 G and MCOB 1.3.6 G.
If used in accordance with its notes and provided to the customer at the correct time, using a combined initial disclosure document in a durable medium may satisfy the requirements of MCOB 4.4A.18 R, though firms should consider whether it contains all the contractual terms and conditions of the distance contract.
Uncertainty whether a mortgage is regulated
- (1)
If at the point that initial disclosure must be made in accordance with MCOB 4.4A.1 R, MCOB 4.4A.2 R, MCOB 4.4A.4 R and MCOB 4.4A.8 Ra firm is uncertain whether the contract will be a regulated mortgage contract, the firm must:
- (a)
make the initial disclosure; or
- (b)
seek to obtain from the customer information that will enable the firm to ascertain whether the contract will be a regulated mortgage contract.
- (a)
- (2)
Where (1)(b) applies, the initial disclosure must be made unless, on the basis of the information provided by the customer, the firm has reasonable evidence that the contract is not a regulated mortgage contract.
Appointed representatives
A firm may restrict the home finance transactions it authorises a particular appointed representative to sell. If it does so, the firm must ensure the appointed representative reflects this limited range in any disclosure given to the customer under MCOB 4.4A.