FCA Handbook - CONRED 5.5 Taking steps by or on behalf of the FCA

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CONRED 5.5 Taking steps by or on behalf of the FCA

(1) Where there has been a material failure by the lender to take any of the actions required under this chapter, the FCA may:
1. (a) take any of the steps in CONRED 5.2 to CONRED 5.4 in place of the lender; or
2. (b) appoint one or more competent persons to take any of the steps in CONRED 5.2 to CONRED 5.4 in place of the lender.
(2) The FCA must give the lender notice before taking any steps under (1).

Where the FCA gives notice in the circumstances described in CONRED 5.5.1R(1), the lender must:

(1) not carry out (or, as the case may be, cease to carry out) any of the steps to be taken by the FCA or the competent person, unless so directed by the FCA or the competent person (as applicable); and
(2) render all reasonable assistance to the FCA or the competent person.

A lender must, in rendering all reasonable assistance to the FCA, ensure that the FCA has access to all primary and secondary records and, to the extent that there are gaps in those records, request them from the appropriate person in accordance with the rules in this chapter.

The competent person may request relevant records and information directly from the credit broker, providing them with 1 month to respond.

If a credit broker does not respond to the request for information in CONRED 5.5.4R within 1 month, or if the credit broker only partially responds, the competent person may send a further communication in a durable medium, providing a further 14 days for the credit broker to respond.

Where a credit broker receives a request for information from a competent person under CONRED 5.5.4R or CONRED 5.5.5R, it must conduct a thorough search of its systems and respond to that request within the prescribed deadlines by either:

(1) providing the requested information in the format requested or, if that is not reasonably practicable, a reasonable format; or
(2) confirming that it does not hold the requested information.

(1) Where the FCA or a competent person takes any steps under CONRED 5.5.1R and the FCA proposes to make any determination of:
1. (a) whether there has been a material failure by the lender to take any actions required under this chapter;
2. (b) whether a failure by a lender has caused loss to a consumer; or
3. (c) what the provisional redress sum must be in respect of the failures,
the FCA must give the lender a warning notice specifying the proposed provisional determination.
(2) The provisional redress sum in (1)(c) must be the amount that would be owed to a consumer if a redress determination was made pursuant to CONRED 5.4 on the same date as the warning notice.

(1) If the FCA decides to make a determination of the matters in CONRED 5.5.7R, the FCA must give the lender a decision notice specifying the determination.
(2) If the FCA makes such a determination, the lender may refer the matter to the Tribunal.

Part 26 of the Act (including the provisions as to final notices) applies in respect of notices given under CONRED 5.5.7R and CONRED 5.5.8R.

(1) Where, instead of the lender, the FCA or, where applicable, a competent person communicates with a consumer:
1. (a) the FCA or the competent person must do so in its own name, making clear in the case of a competent person its authority from the FCA to do so; and
2. (b) the FCA or the competent person must make such amendments to the communications in the forms set out in CONRED 5 Annex 2 to CONRED 5 Annex 10 as appropriate to reflect that they are being sent in the name of the FCA or the competent person.
(2) Where, instead of the lender, the FCA or, where applicable, a competent person issues the redress determination:
1. (a) the FCA or the competent person must update the redress sum in the provisional decision no earlier than 1 month after the issue of a final notice in respect of the FCA’s decision to make a determination of the matters in CONRED 5.5.7R to reflect the amount that is owed at the time such redress determination is made; and
2. (b) the FCA or the competent person must send the lender a copy of the consumer’s response to the redress determination.

A fee is payable by the lender in any case where the FCA exercises its powers under CONRED 5.5.1R: see the table at FEES 3.2.7R.

The completion of the steps in CONRED 5.2 to CONRED 5.4 by, or on behalf of, the FCA, as provided in CONRED 5.5.1R, does not affect the ability of the Financial Ombudsman Service to consider a complaint, in particular where the lender has not sent a redress determination in accordance with the time limits specified under the scheme.