Types of activity – are they regulated activities and, if so, why?
Type of activity |
Is it a regulated activity? |
Rationale |
MARKETING AND EFFECTING INTRODUCTIONS |
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Passive display of information -for example, medical insurance brochures in doctor’s surgery (whether or not remuneration is received for this activity) |
No. |
Merely displaying information does not constitute making arrangements under article 25(2) (see PERG 5.6.4 G). |
Recommending a broker/insurance undertaking and providing customer with contact details (whether by phone, fax, e-mail, face-to-face or any other means of communication) |
Yes, but article 72C may be available. |
This will constitute making arrangements under article 25(2). But, the exclusion in article 72C will apply if all the intermediary does is supply information to the customer and the conditions of article 72C are otherwise met (see PERG 5.6.5 G to PERG 5.6.9 G). Generally, this will not amount to advice under article 53(1)1 unless there is an implied recommendation of a particular policy (see PERG 5.8.4 G), in which case article 72C would not be available. |
Providing an insurance undertaking/broker with contact details of customer |
Yes. |
This will constitute making arrangements under article 25(2) when undertaken in the context of regular or ongoing arrangements for introducing customers. Article 72C will not apply because the information is supplied to someone other than the policyholder or potential policyholder. |
Marketing on behalf of insurance undertaking to intermediaries only (for example, broker consultants) |
Yes. |
This amounts to work preparatory to the conclusion of contracts of insurance and so constitutes making arrangements under article 25(2). Article 72C is not available because this activity does not involve provision of information to the policyholder or potential policyholder only. |
Telemarketing services (that is, companies specialising in marketing an insurance undertaking's products/services to prospective customers) |
Yes. |
This amounts to introducing and/or other work preparatory to the conclusion of contracts of insurance and so constitutes making arrangements under article 25(2). This could also involve article 25(1) arranging where the telemarketing company actually sells a particular policy and could involve advising on investments. Article 72C will not be available where the provision of information is more than incidental to the telemarketing company’s main business or where the telemarketing company is advising on investments. |
PRE-PURCHASE DISCUSSIONS WITH CUSTOMERS AND ADVICE |
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Discussion with client about need for insurance generally/need to take out a particular type of insurance |
Generally, no. Article 72C available if needed. |
Not enough, of itself, to constitute making arrangements under article 25(2), but you should consider whether, viewed as a whole, your activities might amount to arranging. If so, article 72C might be of application (see PERG 5.6.5 G to PERG 5.6.9 G). |
Advising on the level of cover needed |
Generally, no. Article 72C available if needed. |
Not enough, of itself, to constitute making arrangements under article 25(2), but you should consider whether, viewed as a whole, your activities might amount to making arrangements under article 25(2) (see PERG 5.8.3 G). If so, article 72C might be of application (see PERG 5.6.5 G to PERG 5.6.9 G). |
Pre-purchase questioning in the context of filtered sales (intermediary asks a series of questions and then suggests several policies which suit the answers given) |
Yes. Subject to article 72 C exclusion where available. |
This will constitute arranging although article 72C may be of application (see PERG 5.6.5 G to PERG 5.6.9 G). If there is no express or implied recommendation of a particular policy, this activity will not amount to advice under article 53(1)1 (see PERG 5.8.15 G to PERG 5.8.19 G). |
Explanation of the terms of a particular policy or comparison of the terms of different policies |
Possibly. Article 72C available. |
This is likely to amount to making arrangements under article 25(2). In certain circumstances, it could involve advising on investments (except P2P agreements)1 (see PERG 5.8.8 G (Advice or information)). Where the explanation is provided to the potential policyholder, and does not involve advising on investments (except P2P agreements)1, article 72C may be of application (see PERG 5.6.5 G to PERG 5.6.9 G), and where information is provided by a professional in the course of a profession, article 67 may apply (see PERG 5.11.9 G to PERG 5.11.12 G). |
Advising that a customer take out a particular policy |
Yes. |
This amounts to advice on the merits of a particular policy under article 53(1)1 (see PERG 5.8.4 G to PERG 5.8.5 G). |
Advising that a customer does not take out a particular policy |
Yes. |
This amounts to advice on the merits of a particular policy under article 53(1)1 (see PERG 5.8.4 G to PERG 5.8.5 G). |
Advice by journalists in newspapers, broadcasts etc. |
Generally, no because of the article 54 exclusion. |
Article 54 provides an exclusion for advice given in newspapers etc (see PERG 5.8.24 G to PERG 5.8.25 G). |
Giving advice to a customer in relation to his buying a consumer product, where insurance is a compulsory secondary purchase and/or a benefit that comes with buying the product |
Not necessarily but depends on the circumstances. |
Where the advice relates specifically to the merits of the consumer product, it is possible that references to the accompanying insurance may be seen to be information and not advice. If, however, the advice relates, in part, to the merits of the insurance element, then it will be regulated activity. |
ASSISTING CUSTOMERS WITH COMPLETING/SENDING APPLICATION FORMS |
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Providing information to customer who fills in application form |
Possibly. Subject to article 67 or 72C exclusions where available. |
This activity may amount to arranging although the exclusions in article 67 (see PERG 5.11.9 G to PERG 5.11.12 G) and article 72C (see PERG 5.6.5 G to PERG 5.6.9 G) may be of application. |
Helping a potential policyholder fill in an application form |
Yes. |
This activity amounts to arranging. Article 72C will not apply because this activity goes beyond the mere provision of information to a policyholder or potential policyholder (see PERG 5.6.5 G to PERG 5.6.9 G). |
Receiving completed proposal forms for checking and forwarding to an insurance undertaking (for example, an administration outsourcing service provider that receives and processes proposal forms) |
Yes. |
This amounts to arranging. Article 72C does not apply because this activity goes beyond the mere provision of information to a policyholder or potential policyholder (see PERG 5.6.5 G to PERG 5.6.9 G). |
Assisting in completion of proposal form and sending to insurance undertaking |
Yes. |
This activity amounts to arranging. Article 72C does not apply because this activity goes beyond the mere provision of information (see PERG 5.6.5 G to PERG 5.6.9 G). |
NEGOTIATING AND CONCLUDING CONTRACTS OF INSURANCE |
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Negotiating terms of policy on behalf of a customer with the insurance undertaking |
Yes. |
This activity amounts to arranging (see PERG 5.6.2 G). |
Negotiating terms of policy on behalf of insurance undertaking with the customer and signing proposal form on his behalf |
Yes. |
These activities amount to both arranging and dealing in investments as agent. |
Concluding a contract of insurance on insurance company’s behalf, for example, motor dealer who has authority to conclude insurance contract on behalf of insurance undertaking when selling a car |
Yes. |
A person carrying on this activity will be dealing in investments as agent. He will also be arranging (as the article 28 exclusion only applies in the limited circumstances envisaged under article 28(3)) (see PERG 5.6.12 G). |
Agreeing, on behalf of a prospective policyholder, to buy a policy. |
Yes. |
A person who, with authority, enters into a contract of insurance on behalf of another is dealing in investments as agent under article 21, and will also be arranging. |
Providing compulsory insurance as a secondary purchase |
Yes. It will amount to dealing in investments as agent or arranging. |
The fact that the insurance is secondary to the primary product does not alter the fact that arranging the package involves arranging the insurance. |
COLLECTION OF PREMIUMS |
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Collection of cheque for premium from the customer at the pre-contract stage. |
Yes (as part of arranging). |
This activity is likely to form part of arranging. But the mere collection/receipt of premiums from the customer is unlikely, without more, to amount to arranging. |
Collection of premiums at post-contract stage |
No. |
The mere collection of premiums from policyholders is unlikely, without more, to amount to assisting in the administration and performance of a contract of insurance. |
MID-TERM ADJUSTMENTS AND ASSIGNMENTS |
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Solicitors or licensed conveyancers discharging client instructions to assign contracts of insurance. |
Not where article 67 applies. |
As the assignment of rights under a contract of insurance (as opposed to the creation of new contracts of insurance) does not fall within the IMD, article 67 is of potential application (see PERG 5.11.9 G to PERG 5.11.12 G). |
Making mid-term adjustments to a policy, for example, property manager notifies changes to the names of the leaseholders registered as “interested parties” in the policy in respect of the property. |
Yes. |
Assuming the freeholder (as policyholder) is obliged under the terms of the policy to notify the insurance undertaking of changes to the identity of the leaseholders, the property manager is likely to be assisting in the administration and the performance of the contract of insurance. |
TRADED ENDOWMENT POLICIES (“TEPs”) |
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Making introductions for the purposes of selling TEPs |
Yes, unless article 72C applies. |
Making introductions for these purposes is arranging unless article 72C applies (see PERG 5.6.5 G to PERG 5.6.9 G). The exclusions in article 29 (Arranging deals with or through authorised persons) and 33 (Introducing) no longer apply to arranging contracts of insurance. |
Market makers in TEPs |
Yes, although the exclusion in article 28 may apply. |
Unauthorised market makers can continue to make use of the exclusions in articles 15 (Absence of holding out etc.) and 16 (Dealing in contractually based investments), where appropriate. In order to avoid the need for authorisation in respect of arranging they may be able to rely upon article 28 (see PERG 5.6.12 G). |
ASSISTING POLICYHOLDER WITH MAKING A CLAIM |
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Merely providing information to the insured to help him complete a claim form |
No. |
Of itself, this is likely to amount to assisting in the administration but not the performance of a contract of insurance. In the FCA's view, the provision of information in these circumstances is more akin to facilitating performance of a contract of insurance rather than assisting in the performance (see PERG 5.7.3 G to PERG 5.7.5 G) |
Completion of claim form on behalf of insured |
Potentially. |
This activity amounts to assisting in the administration of a contract of insurance. Whether this activity amounts to assisting in the administration and performance of a contract of insurance will depend upon whether a person's assistance in filling in a claims form is material to whether performance of the contractual obligation to notify a claim takes place (see PERG 5.7.2 G to PERG 5.7.3 G). |
Notification of claim to insurance undertaking and helping negotiate its settlement on the policyholder's behalf |
Yes. |
This activity amounts to assisting in the administration and performance of a contract of insurance (see PERG 5.7.4 G). |
ASSISTING INSURANCE UNDERTAKING WITH CLAIMS BY POLICYHOLDERS |
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Negotiation of settlement of claims on behalf of an insurance undertaking |
No. |
Claims management on behalf of an insurance undertaking does not amount to assisting in the administration and performance of a contract of insurance by virtue of the exclusion in article 39B (see PERG 5.7.7 G). |
Providing information to an insurance undertaking in connection with its investigation or assessment of a claim |
No. |
This activity does not amount to assisting in the administration and performance of a contract of insurance. |
Loss adjusters and claims management services (for example, by administration outsourcing providers) |
Potentially. |
These activities may amount to assisting in the administration and performance of a contract of insurance. Article 39B excludes these activities, however, when undertaken on behalf of an insurance undertaking only (see PERG 5.7.7 G). |
Providing an expert appraisal of a claim |
No. |
This activity does not amount to assisting in the administration and performance of a contract of insurance whether carried out on behalf of an insurance undertaking or otherwise. |
Jeweller repairs customer’s jewellery pursuant to a policy which permits the jeweller to carry out repairs |
No. |
This activity does not amount to assisting in the administration and performance of a contract of insurance. It amounts to managing claims on behalf of an insurance undertaking and so falls within the exclusion in article 39B (see PERG 5.7.7 G). |