This chapter applies to a firm in a category listed in column (1) of the table in MCOB 4.1.2 R in accordance with column (2) of that table.

This chapter applies if a firm in the course of carrying on a regulated mortgage activity:

1. (1)

   makes, or anticipates making, a personal recommendation about; or

2. (2)

   gives, or anticipates giving, personalised information relating to;

the customer:

1. (3)

   entering into a regulated mortgage contract; or

2. (4)

   varying the terms of a regulated mortgage contract entered into by the customer.

1. (1)

   MCOB 4.4 (Initial disclosure requirements) applies only in relation to varying the terms of a regulated mortgage contract entered into by the customer in any of the following ways:

   1. (a)

      adding or removing a party;

   2. (b)

      taking out a further advance; or

   3. (c)

      switching all or part of the regulated mortgage contract from one interest rate to another.1

2. (2)

   Otherwise, this chapter, MCOB 4, applies in relation to any form of variation of a regulated mortgage contract.

In relation toa regulated lifetime mortgage contract or a home reversion scheme, this chapter MCOB 4 is modified by MCOB 8 (Lifetime mortgages: advising and selling standards).2

1. (1)

   Subject to (2), a firm must take reasonable steps to ensure that the scope of the service given to a customer, and the regulated mortgage contracts offered, is based on a selection from one of the following:

   1. (a)

      the whole market; or

   2. (b)

      a limited number of mortgage lenders; or

   3. (c)

      a single mortgage lender.

2. (2)

   A firm may change the scope of the service it gives to a particular customer by widening the scope, for example, from that in (1)(c) to that in (b) or (a) but it must take reasonable steps to ensure that before doing so:

   1. (a)

      the customer is made aware of the proposed change by a communication in a durable medium; and

   2. (b)

      the customer's attention is drawn to any change in the fees that the customer must pay to the firm for the firm's services.

A firm must take reasonable steps to ensure that the extent of the scope of the service which it holds itself out as offering to a customer reflects the extent of that scope in practice.

1. (1)

   A firm which holds itself out as giving information or advice to customers on regulated mortgage contracts from the whole market must not give any such information or advice unless:

   1. (a)

      it has considered a sufficiently large number of regulated mortgage contracts which are generally available from the market; and

   2. (b)

      the consideration in (a) is based on criteria which reflect adequate knowledge of the regulated mortgage contracts generally available from the market as a whole.

2. (2)

   A firm in (1) must satisfy the obligation in MCOB 4.7.2 R by taking reasonable steps to ensure that a personal recommendation given to a customer is:

   1. (a)

      in accordance with the consideration in (1); and

   2. (b)

      the regulated mortgage contract which on the basis of that consideration is the most suitable to meet the customer's needs.

1. (1)

   When providing information or giving advice to a customer on regulated mortgage contracts, a firm must not hold itself out as acting independently unless it intends to:

   1. (a)

      provide that service wholly or predominantly based on the whole market; and

   2. (b)

      enable the customer to pay a fee for the provision of that service.

2. (2)

   A firm which in accordance with (1) holds itself out as independent must ensure that the information or advice subsequently given to the customer concerned is information or advice on regulated mortgage contracts from the whole market.

A firm may restrict the regulated mortgage contracts it authorises a particular appointed representative to sell. If it does so, the appointed representative must reflect this restricted scope in the initial disclosure document provided to the customer in accordance with MCOB 4.4.1 R (1)(c).

1. (1)

   A firm must ensure that, on first making contact with a customer when it anticipates giving personalised information or advice on a regulated mortgage contract, it:

   1. (a)

      establishes with the customer whether it will provide advice or information;

   2. (b)

      establishes with the customer how much he will pay or, alternatively, the basis on which the firm will be remunerated, where appropriate; and

   3. (c)

      (unless (2) applies) provides the customer with either:

      1. (i)

         the initial disclosure document in MCOB 4 Annex 1; or

      2. (ii)

         if the firm has reasonable grounds to be satisfied that the services which it is likely to provide to the customer will, in addition to relating to regulated mortgage contracts or regulated lifetime mortgage contracts relate to one or more of non-investment insurance contracts or packaged products 3, the combined initial disclosure document in MCOB 4 Annex 2;

         3

      subject to (3) and in a durable medium.

2. (2)

   The requirement in (1)(c) does not apply where;

   1. (a)

      an initial disclosure document has already been provided by the firm and that document is still likely to be accurate and appropriate for the customer; or

   2. (b)

      an initial disclosure document 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:

      1. (i)

         does not anticipate altering or replacing the service described in that document; or

      2. (ii)

         is not making contact with a view to concluding a distance mortgage mediation contract; or

   3. (c)

      initial contact is made by telephone.

3. (3)

   A firm may choose not to include the initial disclosure information required by sections 6, 7 and 8 of MCOB 4 Annex 1, and sections 5, 7 and 8 of MCOB 4 Annex 2, if it provides the customer with the information required by those sections in some other durable medium before the customer makes an application for a regulated mortgage contract.

1. (1)

   If at the point that initial disclosure must be made in accordance with MCOB 4.4.1 R or MCOB 4.4.7 R a firm is uncertain whether the contract will be a regulated mortgage contract, the firm must:

   1. (a)

      provide the initial disclosure document; or

   2. (b)

      seek to obtain from the customer information that will enable the firm to ascertain whether the contract will be a regulated mortgage contract.

2. (2)

   Where (1)(b) applies, the initial disclosure document must be provided 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.

1. (1)

   If a firm's scope of service is based on MCOB 4.3.1 R (1)(b) it must maintain, and keep up to date, in a durable medium and in a form which is appropriate for distribution to the customer, a list of the mortgage lenders whose regulated mortgage contracts it offers. This list must also confirm whether or not the firm provides services in relation to all of the regulated mortgage contracts generally available from each mortgage lender.

2. (2)

   The customer must be provided with a copy of the information described in (1) on request.

3. (3)

   A firm must take reasonable steps to ensure that its appointed representatives provide a copy of the record in (1) to a customer on request.

1. (1)

   If the initial contact of a kind in MCOB 4.4.1 R(1) is by telephone, then unless MCOB 4.4.1 R(2)(a) applies, the following information must be given before proceeding further:

   1. (a)

      the name of the firm and (if the call is initiated by or on behalf of the firm) the commercial purpose of the call;

   2. (b)

      the scope of the service provided by the firm (within the meaning of MCOB 4.3.1 R);

   3. (c)

      if the scope of the service is based on MCOB 4.3.1 R(1)(b), that the customer can request a copy of the list of mortgage lenders whose regulated mortgage contracts it offers and confirmation of whether the firm provides services in relation to all of the regulated mortgage contracts generally available from each mortgage lender;1

   4. (d)

      whether or not the firm will provide the customer with advice on those regulated mortgage contracts within its scope; and

   5. (e)

      that the information given under (a) to (d) will be confirmed in writing.

2. (2)

   2Provided that the telephone call in (1) has not led the firm to conclude that the customer is ineligible for any of its regulated mortgage contracts, and that the customer has provided his contact details, the firm must send the customer a copy ofthe initial disclosure document required by MCOB 4.4.1 R in the form set out in MCOB 4 Annex 1 or MCOB 4 Annex 2 and any other information required to be provided, in a durable medium within five business days of the telephone call (see also MCOB 4.5.2 R (2)(b) for the equivalent requirement in relation to distance mortgage mediation contracts).2

3. (3)

   If the customer accepts the offer in (1)(c) of a list of the mortgage lenders whose regulated mortgage contracts the firm offers, that list must also be sent with the information required in (2).

If the initial contact of a kind in MCOB 4.4.1 R (1) is with a retail customer with a view to concluding a distance mortgage mediation contract.2, a firm must:

1. (1)

   in addition to the initial disclosure informationrequired by MCOB 4.4.1 R (1)(c) and any other required information, provide the retail customer with the information in MCOB 4 Annex 3 in a durable medium in good time before the conclusion of the distance mortgage mediation contract

   with that customer unless an exemption in (2), (3), (4) or (5) applies.

2. (2)

   Exemption: telephone sales

   1. (a)

      This exemption applies if the service is being provided on the telephone and the customer wishes to enter into a contract with the firm. Provided the customer gives his explicit consent to receiving only limited information, the firm may proceed on the basis of at least the following information:2

      1. (i)

         the name of the person in contact with the customer and his link with the firm;

      2. (ii)

         the total price to be paid by the customer to the firm for the services, including all related fees, charges and expenses, and all taxes paid through the firm or, where an exact price cannot be indicated, the basis for the calculation of the price, enabling the customer to verify it;

      3. (iii)

         notice of the possibility that other taxes or costs may exist that are not paid through the firm or imposed by it;

      4. (iv)

         the information about cancellation rights set out in MCOB 4 Annex 3(5); and

      5. (v)

         that other information is available on request, and the nature of that information.

   2. (aa)

      If the customer does not give his explicit consent to receiving limited information, and the parties wish to proceed by telephone, the firm must, prior to the conclusion of the contract, provide orally to the customer all of the information required by (1).2

   3. (b)

      Where (a) or (aa) applies, the firm must send the retail customer without delay and, at the latest immediately after a contract is concluded, the information required by (1), in a durable medium.2

3. (3)

   Exemption: certain other means of distance communication. This exemption applies if the contract is concluded at the retail customer's request using a means of distance communication (other than telephone) which does not enable provision of the information referred to in MCOB 4 Annex 3 in a durable medium before the conclusion of the contract. In that case, the firm must provide the retail customer with the information in a durable medium immediately after conclusion of the distance mortgage mediation contract.

4. (4)

   Exemption: successive operations or separate operations under an initial service agreement. This exemption applies if the firm has an initial service agreement with the retail customer and the contract is in relation to a successive operation or a separate operation of the same nature under that agreement.

5. (5)

   Exemption: other successive or separate operations This exemption applies if:

   1. (a)

      the firm has no initial service agreement with the retail customer; and

   2. (b)

      the firm has performed an operation with the retail customer within the last year; and

   3. (c)

      the contract is in relation to a successive operation or separate operation of the same nature.

1. (1)

   A retail customer has a right to cancel a distance mortgage mediation contractin accordance with this section.

2. (2)

   The right to cancel must be exercised within 14 days beginning on the later of:

   1. (a)

      the day of the conclusion of the contract; or

   2. (b)

      the day on which the retail customer receives the contractual terms and conditions and other information required by MCOB 4.4 and MCOB 4.5.

A retail customer who has a right to cancel a distance mortgage mediation contractmay, without giving any reason, cancel the contract by serving notice on the firm, before the expiry of the cancellation period in MCOB 4.6.4 R either:

1. (1)

   by serving on, or otherwise sending by post, notice to the firm's last known address, addressed to the firm, its appointed representative or on any agent of the firm with authority to accept notice on the firm's behalf; or

2. (2)

   in accordance with any other practical instructions for exercising that right provided to the retail customer in accordance with MCOB 4 Annex 3(5).

Where the notice of cancellation is in a durable medium and is served in accordance with MCOB 4.6.5 R, it must be treated as being served on the firm on the date it is despatched by the retail customer.

By exercising a right to cancel under MCOB 4.6.4 R the retail customer withdraws from the contract and the entire contract is terminated.

When a retail customer exercises a right to cancel under MCOB 4.6.4 R:

1. (1)

   the firm must:

   1. (a)

      pay to the retail customer without delay, and no later than 30 days after the date on which the firm received notice of cancellation from him, any sums which he has paid to or for the benefit of the firm in connection with the contract (including sums paid by the retail customer to agents of the firm) except for the amount referred to in (b);

   2. (b)

      subject to (c), the firm is permitted to require the retail customer to pay for the services it has actually provided in connection with the contract; the amount payable, however, must be in accordance with the sums which the retail customer agreed to pay and must not:

      1. (i)

         exceed an amount which is in proportion to the extent of the service already provided to the retail customer by the firm; and

      2. (ii)

         be such that it could be construed as a penalty;

   3. (c)

      sub-paragraph (b) applies only if:

      1. (i)

         where performance of the contract has commenced before expiry of the cancellation period, this was requested by the retail customer; and

      2. (ii)

         the firm can demonstrate that the retail customer was provided with details of the amount which he may be required to pay if exercising his right to cancel in accordance with MCOB 4 Annex 3(5).

2. (2)

   The firm is entitled to receive without delay, and no later than 30 days after the date on which the retail customer posted or otherwise sent notice of cancellation to the firm any property that became the retail customer's under the contract and any sums payable to the firm under (1)(b).

Where notice of cancellation has been served on a firm (or its appointed representative or agent), the firm must make and retain a record (which includes a copy of any receipt of notice issued to the retail customer and the retail customer's original notice instructions) for three years from the date when the firm first became aware that notice of cancellation had been served.

A firm must take reasonable steps to ensure that it does not make a personal recommendation to a customer to enter into a regulated mortgage contract, or to vary an existing regulated mortgage contract, unless the regulated mortgage contract is, or after the variation will be, suitable for that customer (see MCOB 4.3.4 R (2), MCOB 4.3.5 G and MCOB 4.3.6 G).

In MCOB 4.7, a reference to a recommendation to enter into a regulated mortgage contract is to be read as including a reference to a recommendation to vary an existing regulated mortgage contract if the context so requires.

For the purposes of MCOB 4.7.2 R:

1. (1)

   a regulated mortgage contract will be suitable if, having regard to the facts disclosed by the customer and other relevant facts about the customer of which the firm is or should reasonably be aware, the firm has reasonable grounds to conclude that:

   1. (a)

      the customer can afford to enter into the regulated mortgage contract;

   2. (b)

      the regulated mortgage contract is appropriate to the needs and circumstances of the customer; and

   3. (c)

      the regulated mortgage contract is the most suitable of those that the firm has available to it within the scope of the service provided to the customer;

2. (2)

   no recommendation must be made if there is no regulated mortgage contract from within the scope of the service provided to the customer which is appropriate to his needs and circumstances; and

3. (3)

   if a firm is dealing with an existing customer in arrears and has concluded that there is no suitable regulated mortgage contract for the purposes of MCOB 4.7.2 R, the firm must nonetheless have regard to MCOB 13.3.2 E(1)(a), (e) and (f) (see also MCOB 13.3.4 G (1)(a) and (b)

In relation to MCOB 4.7.4 R(1)(a), a firm must explain to the customer that the assessment of whether he can afford to enter into a regulated mortgage contract is based on:

1. (1)

   current interest rates, which might rise in the future; and

2. (2)

   the customer's current circumstances, which might change in the future.

In relation to MCOB 4.7.4 R(1)(a) and (b), where a firm makes a personal recommendation to a customer to enter into a regulated mortgage contract where a main purpose is to consolidate existing debts it must also take account of the following, where relevant, in assessing whether the regulated mortgage contract is suitable for the customer:

1. (1)

   the costs associated with increasing the period over which a debt is to be repaid;

2. (2)

   whether it is appropriate for the customer to secure a previously unsecured loan; and

3. (3)

   where the customer is known to have payment difficulties, whether it would be more appropriate for the customer to negotiate an arrangement with his creditors than to take out a regulated mortgage contract.

1. (1)

   If a customer has:

   1. (a)

      rejected all of the personal recommendations made by a firm and requested information instead on a regulated mortgage contract that the firm does not consider suitable (and therefore could not recommend to the customer in accordance with MCOB 4.7.2 R); and

   2. (b)

      been issued with a new initial disclosure document in accordance with MCOB 4.4.1 R or MCOB 4.4.7 R;

   the firm may be able to provide information on that regulated mortgage contract in the light of the information on which the personal recommendations in (1) were made.

2. (2)

   If the firm needs to ask further questions regarding the needs and circumstances of the customer to be able to provide information on that regulated mortgage contract, the firm must obtain that information by asking scripted questions (in accordance with MCOB 4.8.1 R).

1. (1)

   A firm must make and retain a record:

   1. (a)

      of the customer information, including that relating to the customer's needs and circumstances, that it has obtained for the purposes of MCOB 4.7; and

   2. (b)

      that explains why the firm has concluded that any personal recommendation given in accordance with MCOB 4.7.2 R satisfies the suitability requirements in MCOB 4.7.4 R(1). This explanation must include, where this is the case, the reasons why a personal recommendation has been made on a basis other than that described in MCOB 4.7.13 E(1).

2. (2)

   The record in (1) must be retained for a minimum of three years from the date on which the personal recommendation was made.

1. (1)

   If a firm arranges a regulated mortgage contract or a variation to an existing regulated mortgage contract without giving a personal recommendation, it must ensure that all the questions it asks the customer about the customer's needs and circumstances are scripted in advance.1

2. (2)

   In the remainder of MCOB 4.8, a reference to a firm providing information to a customer in relation to a regulated mortgage contract is to be read as including a reference to providing information in relation to varying the terms of an existing regulated mortgage contract if the context so requires.1

Where MCOB 4.8.1 R applies, the firm must ensure that staff using the scripted questions are:

1. (1)

   trained in the use of the script;

2. (2)

   trained in the difference between what constitutes a personal recommendation and what does not; and

3. (3)

   instructed not to give a personal recommendation unless they meet the TC requirements for advising on regulated mortgage contracts.

A firm must take reasonable steps to supervise staff who do not meet the TC requirements for advising on regulated mortgage contracts so that:

1. (1)

   they do not give personal recommendations; and

2. (2)

   when using scripted questions to comply with MCOB 4.8.1 R, they adhere to the script in all material respects.

1. (1)

   A firm must make, and keep up to date, a record of the scripted questions required by MCOB 4.8.1 R. The record must be made on the date on which the scripted questions are first used.

2. (2)

   The record in (1) must be retained for one year from the date on which it was superseded by a more up-to-date record.

For the purposes of the rules in MCOB 4 there is one market in regulated mortgage contracts for a business purpose. Within this market, a firm should describe its scope of service in accordance with MCOB 4.3.1 R.

MCOB 4.8.1 R does not apply in relation to a regulated mortgage contract for a business purpose.

This Annex belongs to MCOB 4.4.1 R (1)2

This annex consists only of one or more forms. Forms are to be found through the following address:

Initial disclosure document - mcob4_annex1.pdf13

This annex consists only of one or more forms or templates. Forms and templates are to be found through the 'Forms' link under Useful Links section at www.fsahandbook.info or on the Handbook CD-ROM.213