Related provisions for CASS 5.5.27
21 - 40 of 129 items.
CASS 11 provides important safeguards for the protection of client money held by CASS debt management firms that sit alongside the fiduciary duty owed by firms in relation to client money. CASS 11.4.2 R to CASS 11.4.4 G provide guidance and rules for when money ceases to be client money for the purposes of both those rules and of the fiduciary duty which CASS debt management firms owe to clients in relation to client money.
Money ceases to be client money if:(1) it is paid to the client, or a duly authorised representative of the client; or(2) it is:(a) paid to a third party on the instruction of the client, or with the specific consent of the client; or(b) paid to a third party further to an obligation on the firm under any applicable law; or(3) it is paid into an account of the client (not being an account which is also in the name of the firm) on the instruction, or with the specific consent,
The records and internal controls required by CASS 8.3.1 R must include:(1) an up-to-date list of each mandate that the firm has obtained, including a record of any conditions placed by the client or the firm's management on the use of the mandate;(2) a record of each transaction entered into under each mandate that the firm has;(3) internal controls to ensure that each transaction entered into under each mandate that the firm has is in accordance with any conditions placed by
When keeping its list of mandates under up to date:(1) a firm should create a new entry in the list each time the firm obtains a new mandate;(2) if, for an existing entry on its list, a firm obtains the same information meeting the conditions in again (eg in a written confirmation following a paperless direct debit), the additional mandate is not a new mandate and the firm should not create another entry on the list; but(3) the firm should, for every entry on its list, identify
A firm should distinguish between conditions placed by a client on the firm's use of a mandate, and criteria to which transactions effected by a firm with or for a client may be subject.(1) The requirements in CASS 8.3.2 R (1) and CASS 8.3.2 R (3) apply only in respect of conditions placed around the firm's use of a mandate itself or around the instructions described in CASS 8.2.1 R (4). Examples of these include conditions under which a mandate may only be used by the firm in
If a firm holds money as agent of an insurance
undertaking then the firm'sclients (who are not insurance
undertakings) will be adequately protected to the extent that
the premiums which it receives
are treated as being received by the insurance
undertaking when they are received by the agent and claims money and premium refunds
will only be treated as received by the client when
they are actually paid over. The rules in CASS
5.2 make provision for agency agreements between firms
(1) A firm must not agree to:(a) deal in investments as agent for an insurance undertaking in connection with insurance mediation; or(b) act
as agent for an insurance undertaking for
the purpose of settling claims or handling premium refunds;
or(c) otherwise
receive money as agent of an insurance undertaking;unless:(d) it
has entered into a written agreement with the insurance
undertaking to that effect; and(e) it
is satisfied on reasonable grounds that the terms of the policies
A firm may
operate on the basis of an agency agreement as provided for by CASS 5.2.3 R for
some of its clients and with
protection provided by a client money trust
in accordance with CASS
5.3 or CASS
5.4 for other clients.
A firm may also operate on either
basis for the same client but
in relation to different transactions. A firm which
does so should be satisfied that its administrative systems and controls are
adequate and, in accordance with CASS 5.2.4 G, should ensure that
(1) 1This section applies to a firm that carries on designated investment business for:(a) a retail client; and(b) in the case of MiFID or equivalent third country business, a client.(2) If expressly provided, this section also applies to ancillary services not covered by (1), but only in the course of MiFID or equivalent third country business carried on with or for a client.
(1) A firm that manages investments for a client must establish an appropriate method of evaluation and comparison such as a meaningful benchmark, based on the investment objectives of the client and the types of designated investments included in the client portfolio, so as to enable the client to assess the firm's performance.(2) If a firm proposes to manage investments for a retail client, the firm must provide the client with such of the following information as is applicable:(a)
(1) A firm must provide a client with the information required by this section in good time before the provision of designated investment business or ancillary services unless otherwise provided by this rule.(2) A firm may instead provide that information immediately after starting to provide designated investment business or ancillary services if:(a) the firm was unable to comply with (1) because, at the request of the client, the agreement was concluded using a means of distance
(1) A firm need not treat each of several transactions in respect of the same type of financial instrument as a new or different service and so does not need to comply with the disclosure rules in this chapter in relation to each transaction. [Note: recital 50 to the MiFID implementing Directive](2) But a firm should ensure that the client has received all relevant information in relation to a subsequent transaction, such as details of product charges that differ from those disclosed
Section 137B(1) of the Act (Miscellaneous ancillary matters) provides that rules may make provision which results in client money being held by a firm on trust (England and Wales and Northern
Ireland) or as agent (Scotland only). CASS 5.3.2 R creates a fiduciary relationship
between the firm and its client under which client
money is in the legal ownership of the firm but
remains in the beneficial ownership of the client.
In the event of failure of the firm,
costs relating to
A firm (other
than a firm acting in accordance
with CASS
5.4) receives and holds client money as
trustee (or in Scotland as agent) on the following terms:(1) for
the purposes of and on the terms of CASS
5.3, CASS
5.5 and
the client money (insurance) distribution
rules;(2) subject
to (4),1 for the clients (other than clients which
are insurance undertakings when
acting as such)1 for whom that money is
held, according to their respective interests in it;(3) after
all valid claims
(1) A
firm which holds client money can discharge its obligation
to ensure adequate protection for its clients in
respect of such money by complying
with CASS
5.3 which provides for such money to
be held by the firm on the terms
of a trust imposed by the rules.(2) The
trust imposed by CASS
5.3 is limited to a trust in respect of client money which a firm receives
and holds. The consequential and supplementary requirements in CASS
5.5 are
designed to secure the proper segregation
(1) CASS
5.8 applies to a firm (including
in its capacity as trustee under CASS
5.4) which in the course of insurance mediation activity takes into its
possession for safekeeping any client title documents (other than documents of
no value) or other tangible assets belonging to clients.(2) CASS
5.8 does not apply to a firm when: (a) carrying
on an insurance mediation activity which
is in respect of a reinsurance contract;
or(b) acting
in accordance with CASS 61 (Custody
rules
The rules in
this section amplify the obligation in Principle 10
which requires a firm to arrange
adequate protection for client's assets. Firms carrying on insurance
mediation activities may hold, on a temporary or longer basis, client title documents such
as policy documents (other
than policy documents of no
value) and also items of physical property if, for example, a firm arranges for a valuation. The rules are intended to ensure that firms make adequate arrangements for
(1) A firm which has in its possession or control documents evidencing a client's title
to a contract of insurance or
other similar documents (other
than documents of no value) or which takes into its possession or control
tangible assets belonging to a client,
must take reasonable steps to ensure that any such documents or
items of property:(a) are
kept safe until they are delivered to the client;(b) are
not delivered or given to any other person except
in accordance with instructions
This chapter1 recognises the need to apply a differing level of regulatory protection to the assets which form the basis of the two different types of arrangement described in CASS 3.1.5 G. Under the bare security interest arrangement, the asset continues to belong to the client until the firm's right to realise that asset crystallises (that is, on the client's default). But under a "right to use arrangement", the client has transferred to the firm the legal title and associated
(1) When providing a service to which this chapter applies, a firm must ask the client to provide information regarding his knowledge and experience in the investment field relevant to the specific type of product or service offered or demanded so as to enable the firm to assess whether the service or product envisaged is appropriate for the client.(2) When assessing appropriateness, a firm:(a) must determine whether the client has the necessary experience and knowledge in order
The information regarding a client's knowledge and experience in the investment field includes, to the extent appropriate to the nature of the client, the nature and extent of the service to be provided and the type of product or transaction envisaged, including their complexity and the risks involved, information on:(1) the types of service, transaction and designated investment with which the client is familiar;(2) the nature, volume, frequency of the client's transactions in
(1) CASS
5.4 permits a firm, which
has adequate resources, systems and controls, to declare a trust on terms
which expressly authorise it, in its capacity as trustee, to make advances
of credit to the firm'sclients. The client
money trust required by CASS
5.4 extends to such debt obligations
which will arise if the firm,
as trustee, makes credit advances, to enable a client's3premium obligations
to be met before the premium is
remitted to the firm and similarly
if it allows claims
A firm may
not handle client money in accordance
with the rules in this section
unless each of the following conditions is satisfied:(1) the firm must have and maintain systems and controls
which are adequate to ensure that the firm is
able to monitor and manage its client money transactions
and any credit risk arising from the operation of the trust arrangement and,
if in accordance with CASS 5.4.2 R a firm complies
with both the rules in CASS
5.3 and CASS
5.4, such systems and
The deed referred to in CASS 5.4.6 R must
provide that the money (and,
if appropriate, designated investments)
are held:(1) for
the purposes of and on the terms of:(a) CASS
5.4;(b) the
applicable provisions of CASS
5.5; and(c) the client money (insurance) distribution rules(2) subject
to (41), for the clients (other than clients which
are insurance undertakings when
acting as such) 1for whom that money is
held, according to their respective interests in it;(3) after
all valid
The deed (or equivalent formal document)
referred to in CASS 5.4.6 R may provide that:(1) the firm, acting as trustee (or, in Scotland,
as agent), has power to make advances or give credit to clients or insurance undertakings from client money, provided that it also provides
that any debt or other obligation of a client or
resulting obligation of an insurance undertaking,
in relation to an advance or credit, is held on the same terms as CASS 5.4.7 R;(2) the
benefit of a letter
When a firm provides basic advice it must:1(1) explain why it chose the stakeholder products and stakeholder product providers that appear in the relevant range; and1(2) give the client a list of the stakeholder products and stakeholder product providers that appear in that range;1if the client asks it do so.1
1If a firm giving basic advice recommends to a retail client to acquire a stakeholder product, it must ensure that, before the conclusion of the contract, its representative:(1) (unless the relevant product is a deposit-based stakeholder product) explains to the client, if necessary in summary form, but always in a way that will allow the client to make an informed decision about the firm's recommendation:(a) the nature of the stakeholder product; and(b) the "aims", "commitment"
1Notwithstanding COBS 9.6.14R (2) a firm may provide the summary sheet (COBS 9.6.14R (2)) as soon as reasonably practicable after the conclusion of the contract if the client asks it to do so, or the contract will be concluded using a means of distance communication that does not enable the provision of the summary sheet in a durable medium before the conclusion of the contract, but only if the firm:(1) reads the summary sheet to the client before it concludes the contract; and(2)
A CASS debt management firm receives and holds client money as trustee on the following terms: (1) for the purposes and on the terms of the debt management client money rules and the debt management client money distribution rules; (2) subject to (3), for the clients for whom that money is held, according to their respective interests in it;(3) on failure of the CASS debt management firm, for the payment of the costs properly attributable to the distribution of the client money
Section 137B(1) of the Act provides that rules may make provisions which result in client money being held by a firm on trust. CASS 11.6.1 R creates such a rule in relation to client money held by a CASS debt management firm. The consequence of this rule is there is a fiduciary relationship between a CASS debt management firm and its client, under which client money is in the legal ownership of the firm but remains in the beneficial ownership of the client. In the event of failure
(1) A firm must make a record of the form of each notice provided and each agreement entered into under this chapter. This record must be made at the time that standard form is first used and retained for the relevant period after the firm ceases to carry on business with clients who were provided with that form.(2) A firm must make a record in relation to each client of:(a) the categorisation established for the client under this chapter, including sufficient information to support
(1) [deleted]77(2) 7[deleted]7(3) [deleted]77(3A) [deleted]77(4) [deleted]77(5) [deleted]525(6) [deleted]77(7) The debt management client money chapter applies to CASS debt management firms receiving or holding client money for, or on behalf of, a client in the course of or in connection with debt management activity.6
(1) CASS applies directly in respect of activities conducted with or for all categories of clients.22(2) [deleted]52225(3) The insurance client money chapter2 does not generally distinguish between different categories of client. However, the term consumer4is used for those to 4whom additional obligations are owed, rather than the term retail client.2 This is to be consistent with the client categories used in 1the Insurance: New Conduct of Business sourcebook4.2424(4) Each provision
(1) 7The fact that a firm'sclient is an affiliated company for MiFID business does not affect the operation of CASS to the firm in relation to that client.(2) For business that is not MiFID business, the operation of the custody chapter or the client money chapter may differ if a firm'sclient is an affiliated company and depending on certain other conditions (see, for example, CASS 6.1.10B R and CASS 7.1.12A R).
(1) 7The application of CASS for a trustee firm acting as a depositary is set out in CASS 1.4.6 R and CASS 1.4.7 R.(2) The application of CASS for a trustee firm that is not acting as a depositary is limited as follows:(a) the mandate rules apply;(b) for MiFID business, the custody chapter and the client money chapter apply; and(c) for business that is not MiFID business, the custody chapter and the client money chapter apply only to trustee firms acting as trustees of personal
In negotiating its contract with a service provider, a firm should have regard to:(1) reporting or notification requirements it may wish to impose on the service provider;(2) whether sufficient access will be available to its internal auditors, external auditors or actuaries (see section 341 of the Act) and to the appropriate regulator (see SUP 2.3.5 R (Access to premises) and SUP 2.3.7 R (Suppliers under material outsourcing arrangements);(3) information ownership rights,
In implementing a relationship management framework, and drafting the service level agreement with the service provider, a firm should have regard to:(1) the identification of qualitative and quantitative performance targets to assess the adequacy of service provision, to both the firm and its clients, where appropriate;(2) the evaluation of performance through service delivery reports and periodic self certification or independent review by internal or external auditors; and(3)
Principles 6 (Customers' interests), 7 (Communications with clients), 8 (Conflicts of interest), 9 (Customers: relationships of trust) and 10 (Clients' assets) impose requirements on firms expressly in relation to their clients or customers. These requirements depend, in part, on the characteristics of the client or customer concerned. This is because what is "due regard" (in Principles 6 and 7), "fairly" (in Principles 6 and 8), "clear, fair and not misleading" (in Principle
If the person with or for whom the firm is carrying on an activity is acting through an agent, the ability of the firm to treat the agent as its client under COBS 2.4.3 R3 (Agent as client) will not be available. For example, if a general insurer is effecting a general insurance contract through a general insurance broker who is acting as agent for a disclosed policyholder, the policyholder will be a client of the firm and the firm must comply with the Principles accordingly.
(1) 1A firm must make available to each of its clients to whom it provides prime brokerage services a statement in a durable medium:(a) showing the value at the close of each business day of the items in (3); and(b) detailing any other matters which that firm considers are necessary to ensure that a client has up-to-date and accurate information about the amount of client money and the value of safe custody assets held by that firm for it.(2) The statement must be made available
2Where a firm has entered into an agreement with a client under article 91 (Reporting obligations for prime brokers) of the AIFMD level 2 regulation, and to the extent that the firm makes available to the client the same statements as specified by that article that it is required to provide to the relevant depositary, the FCA will treat the obligations under CASS 9.2.1 R as satisfied by the firm.
8A firm must ensure that a tied agent that is an appointed representative is of sufficiently good repute and that it possesses appropriate general, commercial and professional knowledge so as to be able to communicate accurately all relevant information regarding the proposed service to the client or potential client. This does not limit a firm's obligations under SUP 12.4.2 R.[Note: paragraphs 3 and 4 of article 23(3) of MiFID]
1
Multiple principal agreement
Matter |
Explanation |
|
1. |
Scope of appointment |
The scope of appointment given by each principal to the appointed representative. |
2. |
Complaints handling |
The identity of the principal which will be the point of contact for a complaint from a client (referred to as the "lead-principal" in SUP 12.4.5D G to SUP 12.4.5E G). |
An agreement that each principal will co-operate with each other principal in resolving a complaint from a client in relation to the appointed representative's conduct. |
||
The arrangements for complaints handling, including arrangements for resolving disputes between the principals in relation to their liability to a client in respect of a complaint and arrangements for dealing with referrals to the Financial Ombudsman Service. |
||
3. |
The arrangements for approving financial promotion. |
|
4. |
Control and monitoring |
The arrangements for the control and monitoring of the activities of the appointed representative (see in particular SUP 12.6.6 R (Regulated activities and investment services outside the scope of appointment) and SUP 12.6.7 G (Senior management responsibility for appointed representatives)). |
5. |
Approved person status |
The arrangements for making applications for approved person status (see SUP 10A and SUP 10B23 (Approved persons)). 23 |
6. |
Training and competence |
The arrangements for training and competence (see TC). |
7. |
Co-operation |
The arrangements for co-operation over any other issues which may arise from the multiple appointments, including issues which may damage the interests of clients dealing with the appointed representative and administrative issues. |
An agreement by each principal to take reasonable steps to ensure that it does not cause the appointed representative or any of its other principals to be in breach of their obligations to each other or under the regulatory system. |
||
8. |
Sharing information |
The arrangements for sharing information on matters relevant to the matters covered under the multiple principal agreement and each principal's obligations under SUP 12.6 (Continuing obligations of firms with appointed representatives). |
An agreement that each principal will notify each other principal of any information which is materially relevant to the multiple principal agreement. |
1One effect of the multiple principal agreement is to introduce a 'lead-principal' concept in relation to complaints handling for the benefit of the client. For example, where the client has been given advice by an appointed representative who has two principals, and the advice could have led to a transaction being arranged with either principal, the client will know that he may pursue his complaint with (but not necessarily against) one of the principals. Whether he later decides