SUP 10.13 Changes to an approved person's details

An approved person's job may change from time to time as a result, for instance, of a change in personal job responsibilities or a firm's regulated activities. Where the changes will involve the person performing one or more different controlled functions from those for which approval has already been granted, then an application must be made to the FSA for approval for the person to perform those controlled functions. The firm must take reasonable care to ensure that an individual does not begin performing a controlled function until the FSA has granted approved person status to that individual in respect of that controlled function. This applies to individuals seeking approval in respect of a controlled function within the firm for which they already perform controlled functions. If the approved person is ceasing to perform controlled functions, as well as applying for approval in respect of additional controlled functions, then refer to SUP 10.13.3 D.

SUP 10.12.2 D applies where5 an individual is5 to perform further controlled functions for a firm for which he already performs a controlled function as an approved person (see SUP 10.12.2 D). It is not mandatory to complete all parts of the form. See the notes relevant2to each2form for full details.

If it is proposed that an approved person will no longer be performing a controlled function under an arrangement entered into by one firm or one of its contractors, but will be performing the same or a different controlled function under an arrangement entered into by a new firm or one of its contractors (whether or not the new firm is in the same group as the old firm), the new firm will be required to make a fresh application for the performance of the controlled function by that person.

In certain circumstances, when the FSA already has the information it would usually require, a shortened version of the relevant2 Form A may be completed. See the notes relevant2 to each2 form for full details; see also SUP 10.12.2 D for the method of submission of this form.5

1. (1)

   6The obligations to supply information to:

   1. (a)

      the FSA under either SUP 10.13.6 R or SUP 10.13.7 R;

   2. (b)

      another firm under SUP 10.13.12 R;

      apply notwithstanding any agreement (for example a 'COT 3' Agreement settled by the Advisory, Conciliation and Arbitration Service (ACAS)) or any other arrangements entered into by a firm and an employee upon termination of the employee's employment. A firm should not enter into any such arrangements or agreements that could conflict with its obligations under this section.

2. (2)

   Failing to disclose relevant information to the FSA may be a criminal offence under section 398 of the Act.

Notification under SUP 10.13.7 R may be made by telephone, fax or email and should be made, where possible, within one business day of the firm becoming aware of the information. If the firm does not submit Form C, it should inform the FSA in due course of the reason. This could be done using Form D, if appropriate.

A firm is responsible for notifying the FSA if any approved person has ceased to perform a controlled function under an arrangement entered into by its appointed representative or former appointed representative

A firm can submit Form C or Form E to the FSA in advance of the cessation date. When a person ceases the arrangement under which he performs a controlled function, he will automatically cease to be an approved person in relation to that controlled function. A person can only be an approved person in relation to a specific controlled function. Therefore, a person is not an approved person during any period between ceasing to perform one controlled function (when he is performing no other controlled function) and being approved in respect of another controlled function.

Sending forms promptly will help to ensure that any fresh application can be processed within the standard response times.

4The requirement in SUP 10.13.12 R (1) for firm (B) to give to firm (A) all relevant information of which it is aware concerning a person firm A is considering appointing to perform any of the controlled functions, also applies where firm A has outsourced the collection of that information to another (unregulated) third party, where firm B has been made aware that the unregulated third party is acting on behalf of firm A.

A firm supplying a reference in accordance with SUP 10.13.12 R owes a duty to its former employee and the recipient firm to exercise due skill and care in the preparation of the reference. The reference should be accurate and based on documented fact. The firm may give frank and honest views, but only after taking reasonable care both as to factual content, and as to the opinions expressed, and verifying the information upon which they are based.

The duty to notify in SUP 10.13.14 R does not apply to changes to an approved person's private address.

6Failing to disclose relevant information to the FSA may be a criminal offence under section 398 of the Act.

The duty to notify in SUP 10.13.16 R extends to any circumstances that would normally be declared when giving the information required for section 5 of Form A or matters considered in FIT 2.

An example of where a firm should use Form D is when an individual who is appointed by one appointed representative becomes employed by another appointed representative but continues to perform the investment adviser function for the firm. The firm should notify the FSA by completing Section 1.07 of Form D.

The grandfathering arrangements applying to an approved person referred to in SUP 10.13.18 R are contained in Part VI (Approved persons) of the Financial Services and Markets Act (Transitional Provisions) (Authorised Persons etc.) Order 2001 (SI 2001/2636). Article 72 of that Order provides, in general terms, that, where a person was performing a function at the beginning of 1 December 2001 which became a controlled function under the Act, the continued performance of that function by that person was taken to be approved by the FSA. That person therefore became an approved person without the need for a Form A.

7For the purpose of SUP 10.13.20A R:

1. (1)

   when calculating the number of complaints in SUP 10.13.20AR (1)(a) the firm should exclude complaints previously notified to the FSA under this rule;

2. (2)

   redress, under SUP 10.13.20AR (1)(b), should be interpreted to include an amount paid, or cost borne, by the firm, where a cash value can be readily identified, and should include:

   1. (a)

      amounts paid for distress and inconvenience;

   2. (b)

      a free transfer out to another provider which transfer would normally be paid for;

   3. (c)

      goodwill payments and goodwill gestures;

   4. (d)

      interest on delayed settlements;

   5. (e)

      waiver of an excess on an insurance policy; and

   6. (f)

      payments to put the consumer back into the position the consumer should have been in had the act or omission not occurred; and

3. (3)

   if a firm reports on the amount of redress paid under SUP 10.13.20AR (1)(b), the redress should not include repayments or refunds of premiums which had been taken in error (for example where a firm had been taking, by direct debit, twice the actual premium amount due under a policy); the refund of the overcharge would not count as redress.

5If the FSA's information technology systems fail and online submission is unavailable for 24 hours or more, the FSA will endeavour to publish a notice on its website confirming that online submission is unavailable and that the alternative methods of submission set out in SUP 10.13.3D (3), SUP 10.13.6R (3) and SUP 10.13.14R (3) (as appropriate), and SUP 15.7.4 R to SUP 15.7.9 G (Form and method of notification) should be used.

5Where SUP 10.13.3D (3), SUP 10.13.6R (3) or SUP 10.13.14R (3) applies to a firm, GEN 1.3.2 R (Emergency) does not apply.