Related provisions for MCOB 5.1.6
1 - 20 of 60 items.
Under article 53 of the Regulated Activities Order (Advising on investments), advising a person is a specified kind of activity if:(1) the advice is given to the person in his capacity as an investor or potential investor, or in his capacity as agent for an investor or a potential investor; and(2) it is advice on the merits of his doing any of the following (whether as principal or agent):(a) buying, selling, subscribing for or underwriting a particular investment which is a security
Articles 53 and 53Aof the Regulated Activities Order contain a number of elements, all of which must be present before a person will require authorisation. For guidance on whether a person is carrying on these regulated activities, see PERG 8 (Financial promotion and related activities) and PERG 4 (Guidance on regulated activities connected with mortgages), .
The result of the amendments made to the meaning of the business test in section 22 of the Act is that the test differs depending on the activity in question. Where the regulated activities of advising on investments and advising on regulated mortgage contracts are concerned, the business test is not to be regarded as satisfied unless a person carries on the business of engaging in those activities. This is a narrower test than that of carrying on regulated activities by way of
In the FSA's view, for a person to be carrying on the business of advising on investments or advising on regulated mortgage contracts he will usually need to be doing so with a degree of regularity and for commercial purposes – that is to say, he will normally be expecting to gain some kind of a direct or indirect financial benefit. But, in the FSA's view it is not necessarily the case that advice provided free of charge will not amount to a business. Advice is often given 'free'
But even if advice is given in the United Kingdom, the general prohibition will not be contravened if the giving of advice does not amount to the carrying on, in the United Kingdom, of the business of advising on investments or advising on regulated mortgage contracts. Also, the general prohibition will not be contravened if the exclusion for overseas persons in article 72 of the Regulated Activities Order (Overseas persons) applies. That exclusion applies in relation to the giving
If a person is carrying on the business of advising on investmentsin the United Kingdom, he will not require authorisation if:(1) he is able to rely on an exclusion; in addition to the exclusions already mentioned (in articles 54 and 72 of the Regulated Activities Order), other exclusions that may be relevant are in Chapter XVII of Part II of the Regulated Activities Order; or(2) he is an exempt person (see PERG 2.11 (What to do Now?)); since persons are exempt only in relation
Many people may be involved in the production of a periodical publication, news service or broadcast. But if the regulated activity of advising on investments is being carried on so that authorisation is required, the FSA's view is that the person carrying on the activity (and who will require authorisation) is the person whose business it is to have the editorial control over the content. In the case of a periodical publication, this will often be the proprietor. But particular
A firm must take reasonable steps to ensure that it, and any person acting on its behalf, does not: (1) offer, give, solicit or accept an inducement; or (2) direct or refer any actual or potential business in relation to a regulated mortgage contractto another person on its own initiative or on the instructions of an associate; if it is likely to conflict to a material extent with any duty that the firm owes to its customers in connection with a regulated mortgage contract or
MCOB 2.3.2 R does not prevent a firm: (1) assisting a mortgage intermediary so that the quality of the mortgage intermediary's service to customers is enhanced; or (2) giving or receiving indirect benefits (such as gifts, hospitality and promotional competition prizes); providing in either case this is not likely to give rise to a conflict with the duties that the recipient owes to the customer. In particular, such benefits should not be of a kind or value that is likely to impair
(1) A mortgage lender must quantify, in cash terms, any material inducement it offers to a mortgage intermediary or a third party. (2) In quantifying the value of the material inducement, the firm must include any subsequent payments (such as a trail fee) made where the customer continues with the sameregulated mortgage contract.
(1) Quantification of any material inducement offered by the mortgage lender supports the disclosure requirements elsewhere in MCOB. Further guidance on the disclosure of any inducement in cash terms is provided in MCOB 5.6.118 G.(2) A payment made to a third party unconnected with themortgage intermediary, where that payment only reflects the cost of outsourcing work relating to the processing of mortgage applications, would not be considered an inducement in the context of
The various exclusions outlined below deal with a range of different circumstances. (1) Each set of circumstances described in PERG 2.9.3 G to PERG 2.9.17 G has some application to several regulated activities relating to securities, relevant investments orregulated mortgage contracts. They have no effect in relation to the separate regulated activities of accepting deposits, issuing e-money, effecting or carrying out contracts of insurance, advising on syndicate participation
This group of exclusions applies, in specified circumstances, to the regulated activities of:(1) dealing in investments as principal;(2) arranging (bringing about) dealsininvestments, arranging (bringing about) regulated mortgage contracts, making arrangements with a view to transactions in investments and making arrangements with a view to regulated mortgage contracts;(3) managing investments;(4) assisting in the administration and performance of a contract of insurance;(5) safeguarding
A person carrying on certain regulated activities does not require authorisation in specified circumstances if he is acting in a representative capacity. The representative capacities covered by the exclusions depend on the regulated activity concerned but, in most cases, the focus is on persons who are acting as trustee or personal representative. In broad terms, the exclusions apply to specified transactions, or activities, that are part of the discharge of his general obligations
This group of exclusions applies, in specified circumstances, to the regulated activities of:(1) dealing in investments as agent;(2) arranging (bringing about) deals in investments, arranging (bringing about) regulated mortgage contracts, making arrangements with a view to transactions in investments and making arrangements with a view to regulated mortgage contracts;(3) assisting in the administration and performance of a contract of insurance;(4) safeguarding and administering
This group of exclusions applies, in specified circumstances, to the regulated activities of:(1) dealing in investments as principal;(2) dealing in investments as agent;(3) arranging (bringing about) deals in investments, making arrangements with a view to transactions in investments, arranging (bringing about) regulated mortgage contracts and making arrangements with a view to regulated mortgage contracts;(4) advising on investments;(5) entering into regulated mortgage contracts;(6)
The exclusions are available, for regulated activities other than those that relate to regulated mortgage contracts, in the two broad cases set out below. For some of these regulated activities, the exclusions apply in each case. In others, they apply in only one.(1) The first case is where the nature of the regulated activity requires the direct involvement of another person and that person is authorised or exempt (and acting within the scope of his exemption). For example, this
There are six regulated mortgage activities requiring authorisation or exemption if they are carried on in the United Kingdom. These are set out in the Regulated Activities Order. They are:(1) arranging (bringing about) regulated mortgage contracts (article 25 A(1) (Arranging regulated mortgage contracts));(2) making arrangements with a view to regulated mortgage contracts (article 25A(2) (Arranging regulated mortgage contracts));(3) advising on regulated mortgage contracts (article
A person will only need authorisation or exemption if he is carrying on a regulated activity 'by way of business' (see section 22 of the Act (Regulated activities)). There are, in fact, three different forms of business test applied to the regulated mortgage activities. In the FSA's view, however, the difference in the business tests should have little practical effect.
Summary of which variant of the business test applies to the different regulated mortgage activities. This table belongs to PERG 4.3.4 G.
By way of business |
Carrying on the business |
Entering into a regulated mortgage contract (article 61(1)) |
Arranging (bringing about) regulated mortgage contracts (article 25A(1)) |
Administering a regulated mortgage contract (article 61(2)) (and the contract administered must have been entered into by way of business) |
Making arrangements with a view to regulated mortgage contracts (article 25A(2)) |
|
Advising on regulated mortgage contracts (article 53A) |
It follows that whether or not any particular person may be carrying on a regulated mortgage activity 'by way of business' will depend on his individual circumstances. However, some typical examples where the applicable business test would be likely to be satisfied are where a person:(1) enters into one or more regulated mortgage contracts as lender in the expectation of receiving interest or another form of payment that would enable him to profit from his actions;(2) administers
1(1) MCOB applies to every firm that:11(a) carries on regulated mortgage activities (subject to MCOB 1.2.3 R (1)1); or(b) communicates or approves a qualifying credit promotion.(2) Where a firm has outsourced activities to a third party processor, any rule in MCOB which requires the third party processor, when acting as such, to disclose its identity to a customer must be read as requiring disclosure of the identity of the firm (or appointed representative, as appropriate) which
The application of most of MCOB is expressed by reference to four types of firm: mortgage lenders, mortgage administrators, mortgage arrangers and mortgage advisers. This includes those firms that provide business loans to customers under a regulated mortgage contracts (see MCOB 1.2.3 R to MCOB 1.2.9 G). A single firm may fall into more than one of these types. Guidance on these firm types, the regulated mortgage activities which they carry on, a description of what those activities
The effect of article 28A of the Regulated Activities Order would normally mean that arrangements made by a party to a regulated mortgage contract would not fall within the regulated mortgage activity of arranging. So in a direct sale, a mortgage lender would not be carrying on the regulated activity of arranging but, where the transaction proceeds to completion, would instead be involved in the regulated activity of entering into a regulated mortgage contract. However, the provisions
There are exclusions that apply, in certain circumstances, in relation to each of the regulated mortgage activities if the person carrying on the activity is acting in the capacity of trustee or personal representative. Article 66 of the Regulated Activities Order (Trustees, nominees and personal representatives) sets out the circumstances in which the exclusions apply. The terms of these differ slightly depending on the regulated activity.
For the purposes of regulated mortgage activities, sections 418(2), (4), (5), (5A) and (6) are relevant, as follows:(1) Section 418(2) refers to a case where a UK-based person carries on a regulated activity in another EEA State in the exercise of rights under a Single Market Directive. The only Single Market Directive which is relevant to mortgages is the Banking Consolidation Directive.(2) Section 418(4) refers to the case where a UK-based person carries on a regulated activity
The FSA's view of the effect of the Act and Regulated Activities Order in various territorial scenarios is set out in the remainder of this section. In those scenarios:(1) the term "service provider" is used to describe a person carrying on any of the regulated mortgage activities;(2) the term "borrower" refers to a borrower who is an individual and not a trustee; the position of a borrower acting as a trustee is not considered; and(3) it is assumed that the activity is not an
Simplified summary of the territorial scope of the regulated mortgage activities, to be read in conjunction with the rest of this section.
This table belongs to PERG 4.11.8 G
Individual borrower resident and located: |
|||
in the UK |
outside the UK |
||
Service provider carrying on regulated activity from establishment: |
in the UK |
Yes |
Yes |
outside the UK |
Yes |
No |
|
Yes = authorisation or exemption required No = authorisation or exemption not required |
|||
Where a person is carrying on any of the regulated mortgage activities from an establishment maintained by him in the United Kingdom, that person will be 'carrying on a regulated activity in the United Kingdom'. The location and residence of the borrower is irrelevant. That is the practical effect of sections 418(4), (5) and (6) of the Act.
But the exclusion applies only if the principal purpose of the publication or service is not:(1) to advise on securities or relevant investments or regulated mortgage contracts: or(2) to lead or enable persons:(a) to buy, sell, subscribe for or underwrite securities or relevant investments; or (as the case may be);(b) to enter as borrower into regulated mortgage contracts, or vary the terms of regulated mortgage contracts entered into by the persons to whom the advice is givenas
The exclusion applies only if the principal purpose of the publication or service is not:(1) to give advice on securities, relevant investments or regulated mortgage contracts (see PERG 7.3.1 G); or(2) to lead or enable persons to:(a) buy, sell, subscribe for or underwrite securities or relevant investments; or(b) to enter as borrower into regulated mortgage contracts, or vary the terms of regulated mortgage contracts entered into by persons to whom the advice is given as borrower
Looking at the first disqualifying purpose set out in the exclusion, all the matters relevant to whether the regulated activities of advising on investments or advising on regulated mortgage contracts are being carried on must be taken into account (see PERG 8.24 (Advising on investments)). If the principal purpose of a publication or service is to give to persons, in their capacity as investors (or potential investors) or as borrowers (as the case may be), advice as referred
For the second disqualifying purpose, the focus switches to assessing whether the principal purpose of a publication or service is to lead a person to engage in a relevant transaction or enable him to do so. This disqualifying purpose is an alternative to the first. So it extends to material not covered by the first. In this respect:(1) material in a publication or service that invites or seeks to procure persons to engage in a relevant transaction can be said to "lead" to those
This chapter applies with respect to an offer made by a firm to a customer with a view to the firm:(1) entering into a regulated mortgage contract; or(2) varying the terms of a regulated mortgage contract entered into by the customer in any of the following ways:(a) adding or removing a party;(b) making a further advance; or(c) switching all or part of the regulated mortgage contract from one interest rate to another;1(whether or not the customer agrees to enter into the regulated
The purpose of MCOB 5.3.1 R, taken in conjunction with other rules in this chapter, is to ensure that the customer has received details of the particular regulated mortgage contract for which he has applied, in the form of an illustration, and has had the opportunity to satisfy himself that it is appropriate for him. The application should identify the type of interest rate, rate of interest, and the mortgage lender at the point it is submitted by the customer (for how to describe
(1) This chapter applies if a firm:(a) makes a personal recommendation to a customer to enter into a regulated mortgage contract; or(b) provides information to a customer that is specific to the amount that the customer wants to borrow on a particular regulated mortgage contract, including information provided in response to a request from a customer; or(c) provides the means for a customer to make an application to it;in connection with entering into, or agreeing to enter into,
(1) MCOB 5.1.3 R means that this chapter applies where the customer can apply to enter into a regulated mortgage contract. This includes circumstances where, for example, the means to apply is provided in person, by telephone, through a website or through an application pack sent through the post.(2) The effect of this chapter is to require a customer to be provided with an illustration before he submits an application to a mortgage lender.
A person who is concerned to know whether his proposed activities may require authorisation will need to consider the following questions (these questions are a summary of the issues to be considered and have been reproduced, in slightly fuller form, in the flowchart in PERG 4.18):(1) will I be carrying on my activities by way of business (see PERG 4.3.3 G (The business test))?(2) if so, will my activities relate to regulated mortgage contracts (see PERG 4.4 (What is a regulated
An unauthorised person who intends to carry on activities connected with mortgages will also need to comply with section 21 of the Act (Restrictions on financial promotion). This guidance does not cover financial promotions that relate to mortgages. Persons should refer to the general guidance on financial promotion in Appendix 1 to the Authorisation manual, PERG 8 (Financial promotion and related activities)) and, in particular, to PERG 8.17 (Financial promotions concerning agreements
Exclusions from the regulated activity of administering a regulated mortgage contract are provided where persons arrange for administration by an authorised person and where persons administer under an agreement with an authorised person.These exclusions are subject to certain conditions and are explained in greater detail in Auth 4.8 (Administering a regulated mortgage contract).
(1) MCOB 5.1 to MCOB 5.5 (with the modifications stated in MCOB 9.3.2 R to MCOB 9.3.12 R) apply to a firm where the regulated mortgage contract is a regulated lifetime mortgage contract. (2) The table in MCOB 9.3.2 R shows how the relevant rules and guidance in MCOB 5 must be modified by replacing the cross-references with the relevant cross-references to rules and guidance in MCOB 9.3 and MCOB 9.4.(3) The table in MCOB 9.3.3 R replaces certain rules and guidance in MCOB 5 with
Table of modified cross-references to other rules.
This table belongs to MCOB 9.3.1 R.
Subject |
Rule or guidance |
Reference in rule or guidance |
To be read as a reference to: |
Variations |
MCOB 5.1.3R(2) |
MCOB 7 |
|
Part of loan not a regulated lifetime mortgage contract |
MCOB 5.1.9G |
MCOB 5.6.6R(2) |
MCOB 9.4.6R(2) |
Waiver of provisions |
MCOB 5.1.10G |
MCOB 5.6 |
MCOB 9.4. |
Purpose |
MCOB 5.2.1G |
MCOB 5 |
|
Applying for a regulated lifetime mortgage contract |
MCOB 5.3.2G |
||
MCOB 5.4.24G |
MCOB 5.6.74R |
MCOB 9.4.73R |
|
Issue of offer document in place of illustration |
MCOB 5.5.3G |
||
Customer's credit record |
MCOB 5.5.16R |
MCOB 5.5.15R(4) |
MCOB 9.3.12R(3) |
This chapter applies if a firm:(1) enters into a regulated mortgage contract with a customer; or(2) administers a regulated mortgage contract which was entered into with a customer; or(3) arranges or advises on or makes a further advance or other variation to the terms of a regulated mortgage contract entered into with a customer.
(1) MCOB 4.1 to MCOB 4.6 and MCOB 4.8 (with the modifications stated in MCOB 8.3.3 R and MCOB 8.3.4 R) apply to a firm where the regulated mortgage contract is a regulated lifetime mortgage contract.(2) The table in MCOB 8.3.3 R shows how the relevant rules and guidance in MCOB 4 must be modified by replacing the cross-references in that chapter with the relevant cross-references to rules and guidance in MCOB 8.(3) The table in MCOB 8.3.4 R replaces certain rules and guidance
This chapter applies if a firm:(1) in the course of carrying on a regulated mortgage activity:(a) makes, or anticipates making, a personal recommendation about; or(b) gives, or anticipates giving, personalised information relating to;the customer:(c) entering into a regulated lifetime mortgage contract; or(d) varying the terms of a regulated lifetime mortgage contract entered into by the customer; or(2) in addition to (1), gives advice or personalised information to the customer
This chapter applies to anyone involved in publishing periodicals, or in providing news services or broadcasts, who gives (or proposes to give) advice about securities, relevant investments or regulated mortgage contracts and who wishes to determine whether he will be carrying on the regulated activities of advising on investments or advising on regulated mortgage contracts.
The purpose of this chapter is to provide guidance as to:(1) when a person involved in publishing periodicals, or in providing news services or broadcasts, requires authorisation to carry on the regulated activities of advising on investments or advising on regulated mortgage contracts (see PERG 7.3 (Does the activity require authorisation));(2) if he does, whether he qualifies for the exclusion from those activities that applies to a periodical publication, a regularly updated
Professional firms (broadly, firms of solicitors, accountants and actuaries) may carry on regulated mortgage activities in the course of their usual professional activities. The regulated activities of advising on, arranging (bringing about), making arrangements with a view to and administering regulated mortgage contracts are those most likely to be relevant.
In the FSA's view, the following exclusions are likely, in many cases, to exclude the normal activities of professional firms from amounting to regulated mortgage activities:(1) article 67 of the Regulated Activities Order (Activities carried on in the course of a profession or non-investment business), which applies in relation to the advising and arranging activities (see PERG 4.10.1 G);(2) article 66 of the Regulated Activities Order (Trustees, nominees and personal representatives)