PERG 4.6 Advising on regulated mortgage contracts

Article 53A of the Regulated Activities Order (Advising on regulated mortgage contracts) makes advising on regulated mortgage contracts a regulated activity. This covers advice which is both:

1. (1)

   given to a person in his capacity as borrower or potential borrower; and

2. (2)

   advice on the merits of the borrower:

   1. (a)

      entering into a particular regulated mortgage contract (whether or not the entering into is done by way of business); or

   2. (b)

      varying the terms of a regulated mortgage contract entered into by the borrower on or after 31 October 2004, or a legacy CCA mortgage contract entered into by the borrower,6 in such a way as to vary the borrower's obligations under the contract.

In the FCA's view, the circumstances in which a person is giving advice on the borrower varying the terms of a regulated mortgage contract so as to vary his obligations under the contract include (but are not limited to) where the advice is about:

1. (1)

   the borrower obtaining a further advance secured on the same land as the original loan; or

2. (2)

   a rate switch or a product switch (that is, where the borrower does not change lender but changes the terms for repayment from, say, a variable rate of interest to a fixed rate of interest or from one fixed rate to another); or

3. (3)

   the borrower transferring from a repayment mortgage to an interest-only mortgage or the reverse situation.

Although advice on varying the terms of a regulated mortgage contract is not a regulated activity if the contract was entered into before 31 October 2004, unless the contract is a legacy CCA mortgage contract,6 there may be instances where the variation to the old contract is so fundamental that it amounts to entering into a new regulated mortgage contract (see PERG 4.4.4 G). In that case, giving the advice would be a regulated activity.

For advice to fall within article 53A as set out in PERG 4.6.1 G it must:

1. (1)

   relate to a particular mortgage contract (that is, one that the borrower may enter into or, in the case of advice on a variation, one that he has already entered into);

2. (2)

   be given to a person in his capacity as a borrower or potential borrower;

3. (3)

   be advice (that is, not just information); and

4. (4)

   relate to the merits of the borrower entering into, or varying the terms of, the contract.

Each of these aspects is considered in greater detail in PERG 4.6.5 G (Advice must relate to a particular regulated mortgage contract) to PERG 4.6.17 G (Advice must relate to the merits (of entering into as borrower or varying)). Additionally, the following should be borne in mind:

1. (1)

   a person may be carrying on regulated activities involving arranging, whether or not that person is advising on regulated mortgage contracts (see PERG 4.5);

2. (2)

   the provision of advice or information may involve the communication of a financial promotion (see PERG 8 (Financial promotion and related activities); and

3. (3)

   PERG 8.25 7(Advice must relate to an investment which is a security or contractually based investment) to PERG 8.31 (Exclusions for advising on investments)7 will be relevant to any person who may be advising on other forms of investment at the same time as they advise7 on regulated mortgage contracts; this includes, for example, a person advising on the merits of using a particular endowment policy or ISA as the means for repaying the capital under an interest-only mortgage.

Advice will come within the regulated activity in article 53A of the Regulated Activities Order only if it relates to a particular regulated mortgage contract (or several different regulated mortgage contracts). Generic or general advice is not covered: examples of generic advice are shown in PERG 4.6.7G (but see PERG 4.6.7AG as well). Generic or general advice may, however, be a financial promotion (see PERG 8.4 (Invitation or inducement)).

7PERG 4.6.21G to 4.6.25BG includes material about guiding a person through a decision tree.

Advice relates to a particular contract if it recommends that a person should take out a mortgage with ABC Building Society without (expressly or by implication) specifying any particular ABC Building Society mortgage because it is advice on the merits of7 specific identifiable mortgages and compared to7 all others. The advice is essentially saying that there is a feature of each individual ABC Building Society mortgage that makes it better than a mortgage from any other lender. Advice may be regulated even though it relates to more than one possible mortgage. Advice also relates to a particular contract if it recommends that a person should not take out a mortgage with ABC Building Society.2

1. (1)

   7Although giving generic advice is generally not a regulated activity, if it is given in the course of or in preparation for a regulated activity it can form part of that regulated activity.

2. (2)

   For example, if a firm gives generic advice (for instance about the merits of a fixed rate mortgage rather than a variable rate mortgage) and then goes on to identify a particular fixed rate mortgage, the generic advice will form part of the regulated activity of advising on regulated mortgage contracts.

3. (3)

   Another example is a firm that provides generic advice to a customer or a potential customer prior to or in the course of carrying on the regulated activity of arranging (bringing about) regulated mortgage contracts for the customer. That generic advice is part of that regulated activity of arranging (bringing about) deals in investments.

For the purposes of article 53A, advice must be given to or directed at someone who is acting as borrower or potential borrower. As indicated in PERG 4.4.2 G (Which borrowers?), this means the individual or trustee to whom the credit has been provided by the lender or who is looking to obtain the credit on the security of his property. Advice given to a body corporate will not generally be caught because the advice will not concern a regulated mortgage contract, as defined. But this does not apply where the body corporate is acting as trustee.

Article 53A will not, for example, apply where advice is given to persons who receive it as:

1. (1)

   a lender under or administrator of a regulated mortgage contract; or

2. (2)

   an adviser who may use it to inform advice given by him to others; or

3. (3)

   a journalist or broadcaster; or

4. (4)

   an agent of a borrower unless appointed as the borrower's attorney and therefore entering into the regulated mortgage contract as agent (or proxy) for the borrower.

Advice will still be covered by article 53A even though it may not be given to or directed at a particular borrower (for example advice given in a periodical publication or on a website).

In the FCA's view, advice requires an element of opinion on the part of the adviser7. In effect, it is a recommendation as to a course of action. Information on the other hand, involves objective statements of facts and figures.

1. (1)

   In general terms, simply giving information without making any comment or value judgement on its relevance to decisions which a borrower may make is not advice.7

2. (2)

   The provision of purely factual information does not become regulated advice merely because it feeds into the customer’s own decision-making process and is taken into account by them.7

3. (3)

   Regulated advice includes any communication with the customer which, in the particular context in which it is given, goes beyond the mere provision of information and is objectively likely to influence the customer’s decision whether or not to enter into a particular regulated mortgage contract or to vary an existing regulated mortgage contract.7

4. (4)

   A key to the giving of advice is that the information:7

   1. (a)

      is either accompanied by comment or value judgement on the relevance of that information to the customer’s decision; or7

   2. (b)

      is itself the product of a process of selection involving a value judgement so that the information will tend to influence the decision7.

5. (5)

   Advice can still be regulated advice if the person receiving the advice:7

   1. (a)

      is free to follow or disregard the advice; or

   2. (b)

      may receive further advice from another person before making a final decision.

Information relating to entering into regulated mortgage contracts may often involve one or more of the following:

1. (1)

   an explanation of the terms and conditions of a regulated mortgage contract, whether given orally or in writing or by providing leaflets and brochures;

2. (2)

   a comparison of the features and benefits of one regulated mortgage contract with another;

3. (3)

   [deleted]7

4. (4)

   tables that compare the interest rates and other features of different mortgages;

5. (5)

   leaflets or illustrations that help borrowers to decide which type of mortgage to take out;

6. (6)

   the provision, in response to a request from a borrower who has identified the main features of the type of mortgage he seeks, of several leaflets together with an indication that all the regulated mortgage contracts described in them have those features.

In the FCA's opinion, however, such information may7 take on the nature of advice if the circumstances in which it is provided give it the force of a recommendation. For example:7

1. (1)

   a person may provide information on a selected, rather than balanced7, basis that would tend to influence the decision of the borrower; and7

2. (2)

   a person, as a result of going through the sales process, may discuss7 the merits of one regulated mortgage contract over another, resulting in advice to enter into or not enter into a particular one.

7A key question is whether an impartial observer, having due regard to the FCA rules and guidance, context, timing and what passed between the parties, would conclude that what the adviser says could reasonably have been understood by the customer as being advice.

7An explicit recommendation to enter into a particular regulated mortgage contract is likely to be advice. However, something falling short of an explicit recommendation can be advice too. Any significant element of evaluation, value judgement or persuasion is likely to mean that advice is being given.

1. (1)

   7A person can give advice without saying (or implying) categorically that the customer should enter into a particular regulated mortgage contract. The adviser does not have to offer a definitive recommendation as to whether the customer should enter into that particular regulated mortgage contract.

2. (2)

   For example, saying the following can still be advice:

   1. (a)

      “this regulated mortgage contract is a very good deal but it is your decision whether or not to enter into it”; or

   2. (b)

      “this regulated mortgage contract is a very good deal but I am going to leave it to you to decide because I don’t know how important it is to you to have certainty about your monthly mortgage payments”.

3. (3)

   The examples in (2):

   1. (a)

      involve advice and not just information; and

   2. (b)

      involve advice on the merits of entering into a particular regulated mortgage contract (see PERG 4.6.17G to 4.6.20G (Advice must relate to the merits (of entering into as borrower or varying)).

7One factor in deciding whether what was said by an adviser in a particular situation did or did not amount to advice is to look at the inquiry to which the adviser was responding. If a customer asks for a recommendation, any response is likely to be regarded as advice.

7On the other hand, if a customer makes a purely factual inquiry it may be the case that a reply which simply provides the relevant factual information is no more than that. In this case it is relevant whether the adviser makes it clear that they do not give advice, or whether the adviser runs an advisory business.

Advice under article 53A must relate to the pros or cons of entering into a regulated mortgage contract as borrower.

An7 explanation of the implications under a regulated mortgage contract of, for example, exercising certain rights or failing to make interest payments on time, need not, itself, involve advice on the merits of entering into that contract or varying its terms.

Neither does advice on the merits of using a particular mortgage broker or adviser in his capacity as such amount to advice for the purposes of article 53A. It is not advice on the merits of entering into or varying the terms of a regulated mortgage contract.

Without an explicit or implicit recommendation7 on the merits of entering into as borrower or varying the terms of a regulated mortgage contract, advice will not fall under article 53A if it is advice on:7

1. (1)

   the likely meaning of uncertain provisions in a regulated mortgage contract; or7

2. (2)

   how to complete an application form; or7

3. (3)

   the effect of contractual terms and their consequences; or7

4. (4)

   terms which are common in the market.7

Pre-sale questioning involves putting a sequence of7 questions in order to extract information from a person to help them best select a mortgage that meets their7 needs. A decision tree is an example of pre-sale7 questioning. The process of going through the questions will usually narrow down the range of options that are available.7

1. (1)

   There are two aspects of the definition of advising on regulated mortgage contracts that are particularly relevant to whether pre-sale questioning involves advising on regulated mortgage contracts:7

   1. (a)

      the fact that advice must relate to a particular regulated mortgage contract (see PERG 4.6.5G); and

   2. (b)

      the distinction between information and advice (see PERG 4.6.13G).

2. (2)

   Whether or not pre-sale7 questioning in any particular case is advising on regulated mortgage contracts will depend on all the circumstances.

3. (3)

   The pre-sale questioning process may involve7 identifying one or more particular regulated mortgage contracts. If so,7 to avoid advising on regulated mortgage contracts, the critical factor is likely to be whether the process is limited to, and likely to be perceived by the borrower as, assisting the borrower to make their7 own choice of product which has particular features which the borrower regards as important. The questioner will need to avoid making any judgement on the suitability of one or more products for the borrower. See also PERG 4.6.4G for other matters that may be relevant.

7There is considerable potential for variation in the form, content and manner of pre-sale questioning, but there are two broad types, as described in PERG 4.6.23G and 4.6.24G.

7The first type involves identifying regulated mortgage contracts based on7 factual matters. For example, the purpose may be to identify7 whether a borrower wishes to pay a fixed or variable rate of interest or the size of deposit available.7 There are various possible scenarios, including the following:

1. (1)

   the questioner may go on to identify several particular7 regulated mortgage contracts which match features identified by the pre-sale7 questioning; provided these are presented in a balanced and neutral way (for example, they identify all the matching regulated mortgage contracts, without making a recommendation as to a particular one) this need not of itself involve advising on regulated mortgage contracts;

2. (2)

   the questioner may go on to advise the borrower on the merits of one particular regulated mortgage contract over another; this would be advising on regulated mortgage contracts;

3. (3)

   the questioner may, before or during the course of the pre-sale questioning, give information that considered on its own would not involve advising on regulated mortgage contracts, but may, following the pre-sale7 questioning, identify one or more particular regulated mortgage contracts. The factors described in PERG 4.6.25G are relevant to deciding whether or not the questioner is advising on regulated mortgage contracts7.

The second type of pre-sale questioning involves providing questions and answers incorporating opinion, judgement or recommendations.7 There are various possible scenarios, including the following:

1. (1)

   the pre-sale7 questioning may not lead to the identification of any particular regulated mortgage contract; in this case, the questioner has provided advice, but it is generic advice and does not amount to advising on regulated mortgage contracts; or

2. (2)

   the pre-sale questioning may lead to the identification of one or more particular regulated mortgage contracts. In principle, this is likely to involve advising on regulated mortgage contracts as regulated advice includes any communication with the customer which, in the particular context in which it is given, goes beyond the mere provision of information and is objectively likely to influence the customer’s decision whether or not to enter into the regulated mortgage contract (see PERG 4.6.14G). However, the factors described in PERG 4.6.25G are still relevant to deciding whether or not the questioner is advising on regulated mortgage contracts.7

When the scripted pre-sale questioning identifies particular regulated mortgage contracts (see7 PERG 4.6.23G(3) and PERG 4.6.24G(2)), the FCA considers that it is necessary to look at the process and outcome of the pre-sale questioning as a whole7 in deciding whether the process involves advising on regulated mortgage contracts. Factors that may be relevant7 include:

1. (1)

   any representations made by the questioner at the start of the questioning relating to the service they are7 to provide;

2. (2)

   the context in which the questioning takes place;

3. (3)

   the stage in the questioning at which the opinion is offered and its significance;

4. (4)

   the role played by any questioner who guides a person through the pre-sale7 questions;

5. (5)

   the outcome of the questioning (whether particular regulated mortgage contracts are highlighted, how many of them, who provides them, their relationship to the questioner and so on); and

6. (6)

   whether the pre-sale7 questions and answers have been provided by, and are clearly the responsibility of, an unconnected third party7, and all that the questioner has done is help the borrower understand what the questions or options are and how to determine which option applies to their7 particular circumstances.

7A firm selling regulated mortgage contracts through its website might make its list of the regulated mortgage contracts it sells easier to search by allowing the customer to filter mortgages based on factors presented by the website and selected by the customer. Only products that meet the search criteria input by the customer are displayed.

1. (1)

   7The filtering described in PERG 4.6.25AG might be based upon simple objective factors like price or eligibility criteria. This should not generally involve advising on regulated mortgage contracts, as explained in PERG 4.6.23G(1).

2. (2)

   The filtering described in PERG 4.6.25AG might, however, be based upon factors such as balancing customer preferences on price, interest rate and term. This is not a simple objective factor like price alone.

3. (3)

   Where all a firm is doing is listing product features of its own regulated mortgage contracts, for example by ranking objectively by the cost of any arrangement fee, that firm is unlikely to be advising on regulated mortgage contracts as long as it is clear to the customer that this objective ranking is all that the firm is doing. A description of a product’s features is not advice.

4. (4)

   Where a firm is describing regulated mortgage contracts offered by a third party and the product features are drawn directly from information made available to the firm by that third party, the firm is also unlikely to be advising on regulated mortgage contracts as long as it is clear to the customer that all the firm is doing is describing regulated mortgage contracts offered by a third party. A description of the product features is the factual representation of the regulated mortgage contracts and therefore likely to be information and not advice.

5. (5)

   Similarly, an eligibility tool can draw on information supplied by third parties (such as eligibility criteria provided by lenders, or the results of a credit reference search) to provide an indication of whether a customer is likely to qualify for mortgage lending. Where it is clear to the customer that the tool is simply applying details provided by the customer to that information, to provide a view on whether a customer’s application is likely to meet that criteria (and not giving a view on the merits of entering into that particular mortgage), the firm is unlikely to be advising on regulated mortgage contracts.

6. (6)

   If the input from the customer is much more extensive, and the way that those inputs interact on the website is much more complicated, than the processes described in (3) and (4), the website is not simply displaying factual information about the design of the product. In that case the production of a list of results uses an element of opinion and skill (albeit automated) in translating the customer’s input into a display of a particular product or products. Either explicitly or implicitly this is presented as meeting the customer’s requirements and wishes as input into the system. The result is that the filtering process is closer to the one in (2) than the one in (3) and so it is more likely that the firm is advising on regulated mortgage contracts.

With the exception of periodicals, broadcasts and other news or information services (see PERG 4.6.30 G (Exclusion: periodical publications, broadcasts and websites)) the medium used to give advice should make no material difference to whether or not the advice is caught by article 53A.

Advice can be provided in many ways including:

1. (1)

   face to face;

2. (2)

   orally to a group;

3. (3)

   by telephone;

4. (4)

   by correspondence (including e-mail);

5. (5)

   in a publication, broadcast or website; and

6. (6)

   through the provision of an interactive software system.

Taking electronic commerce as an example, the use of electronic decision trees does not present any novel problems. The firm will be giving advice for the purpose of advising on regulated mortgage contracts only if the service goes beyond the mere provision of information and is objectively likely to influence the customer’s decision whether or not to enter into the regulated mortgage contract (see PERG 4.6.21G to PERG 4.6.25BG (Pre-sale7 questioning (including decision trees))).

7Some software services involve the generation of specific prompts promoting remortgaging. These prompts are liable, as a general rule, to be advice for the purposes of article 53A (as well as financial promotions) given by the person responsible for the provision of the software. The exception to this is where the user of the software is required to use enough control over the setting of parameters and inputting of information for the prompts to be regarded as having been generated by the customer rather than by the software itself.

Advice in publications, broadcasts and websites is subject to a special regime – see PERG 4.6.30 G (Exclusion: periodical publications, broadcasts and websites) and PERG 7 (Periodical publications, news services and broadcasts: applications for certification).

The main exclusion from advising on regulated mortgage contracts relates to advice given in periodical publications, regularly updated news and information services and broadcasts (article 54 of the Regulated Activities Order (Advice given in newspapers etc)). The exclusion applies to advising on regulated mortgage contracts if the principal purpose of any of these publications, news and information services or broadcasts7 is neither to give advice of the kind to which7 article 53A applies nor to lead or enable persons to: enter as borrower into regulated mortgage contracts or vary the terms of regulated mortgage contracts entered into by such persons as the borrower.7

This is explained in greater detail, together with the provisions on the granting of certificates, in PERG 7 (Periodical publications, news services and broadcasts: applications for certification).

Article 54A of the Regulated Activities Order excludes from advising on regulated mortgage contracts certain activities of an unauthorised person which is taking advantage of the exclusion from administering a regulated mortgage contract in article 62 (see PERG 4.8.4 G).

The Regulated Activities Order contains a number of other exclusions which have the effect of preventing certain activities from amounting to advising on regulated mortgage contracts. These are referred to in PERG 4.10 (Exclusions applying to more than one regulated activity) and PERG 4.10B (Regulation of buy to let lending)5

2The table in PERG 4.6.34 G sets out some further examples of typical situations and whether they involve regulated advice under article 53A of the Regulated Activities Order.