Related provisions for MCOB 6A.3.5
41 - 60 of 178 items.
3The principal purpose of this power is to promote the early transparency of enforcement proceedings. This has several benefits, including: consumers, firms and market users will be able to understand the types of behaviour that the FCA considers unacceptable at an earlier stage, which in turn should encourage more compliant behaviour;by showing at an earlier stage that the FCA is taking action, confidence in the FCA and the regulatory system should be enhanced;there will be more
3The FCA will take the following initial steps in considering whether it is appropriate to exercise this power: (1) It will consider whether it is appropriate to publish details of the warning notice in order to enable consumers, firms and market users to understand the nature of the FCA’s concerns. The FCA will consider the circumstances of each case but expects normally to consider it appropriate to publish these details. (2) Where the FCA considers it is appropriate to publish
3If, after consulting the persons to whom the notice is given or copied, the FCA still considers it is appropriate to publish information about a warning notice, it will publish this information in a statement (a warning notice statement). This will ordinarily include a brief summary of the facts which gave rise to the warning notice to enable consumers, firms and market users to understand the nature of the FCA’s concerns. Where the FCA considers it appropriate to identify the
3The FCA will consider the circumstances of each case, but will ordinarily publicise enforcement action where this has led to the issue of a final notice. The FCA may also publicise enforcement action where this has led to the issue of a decision notice. The FCA will decide on a case-by-case basis whether to publish information about the matter to which a decision notice relates, but expects normally to publish a decision notice if the subject of enforcement action decides to
During the course of a distance contract with a consumer4, the making or performance of which constitutes or is part of a regulated mortgage contract, home purchase plan or regulated sale and rent back agreement:54353(1) the firm must, at the consumer's4 request, provide a paper copy of the contractual terms and conditions of the regulated mortgage contract, home purchase plan,3regulated sale and rent back agreement5 or services being provided by the firm; and 43(2) the firm
(1) 12A firm must not:(a) supply a service to a consumer4 without a prior request on his part, when this activity includes a request for immediate or deferred payment; or 4(b) enforce any obligations against aconsumer4 in the event of unsolicited supplies of services, the absence of a reply not constituting consent. 4(2) Paragraph (1) applies in relation to mortgage mediation activities, entering into a regulated mortgage contract, home purchase mediation activities or entering
(1) 4This rule applies when a firm proposes to a consumer the renewal of a general insurance contract, which is not a group policy, and which has a duration of 10 months or more.(2) In this rule, ‘renewal’ means carrying forward a policy, at the point of expiry and as a successive or separate operation of the same nature and duration as the policy, with the same insurance intermediary or the same insurer.(3) The firm must provide to the consumer the following information in good
(1) If a policy is bought by a consumer in connection with other goods or services a firm must, before conclusion of the contract, disclose its premium separately from any other prices and whether buying the policy is compulsory.(2) In the case of a distance contract, disclosure of whether buying the policy is compulsory may be made in accordance with the timing requirements under the distance communication rules (see ICOBS 3.1.8 R, ICOBS 3.1.14 R and ICOBS 3.1.15 R).(3) 2This
(1) The rules in (2) do not apply to a firm with respect to a regulated mortgage activity or a home purchase activity2 exclusively concerning a distance contract if the following conditions are satisfied:2(a) the firm carries on the activity from an establishment maintained by the firm in an EEA State other than the United Kingdom; and(b) either the EEA State:(i) has implemented the Distance Marketing Directive3; or3(ii) has obligations in its domestic law corresponding to those
Parts of MCOB relate to distance contracts (or distance mortgage mediation contracts and distance home purchase mediation contracts2) with consumers3. These expressions are derived from the Distance Marketing Directive, and the following paragraphs provide some guidance to firms on their meaning:3(1) consumer3The Distance Marketing Directive applies for distance contracts with 'any natural person who is acting for purposes which are outside his trade, business or profession',
The mere fact that an intermediary (acting for the supplier or for the consumer3) is involved, does not make the sale of a financial product or service a distance contract. There will not be a distance contract if there has been simultaneous physical presence of the intermediary and the consumer3 at some stage in the offer, negotiation and conclusion of the contract.133
When a consumer cancels a distance contract under this chapter, his notice may also operate to cancel any attached contract which is also a distance financial services contract unless the consumer gives notice that cancellation of the main contract is not to operate to cancel the attached contract (see regulation 12 of the Distance Marketing Regulations). Where relevant, this should be disclosed to the consumer along with other information on cancellation.
Where a life policy or unit bought on opening or transferring an ISA is cancellable, the right to cancel, or substitute right to withdraw, applies to the entire arrangement. For example, a maxi-ISA comprising a life policy in the stocks and shares component and a cash component would be cancellable as a whole with a cancellation period of 30 calendar days. However, a firm is free to give the consumer the option of cancelling individual components separately with the same cancellation
1The FCA resolves many enforcement cases by settlement. Early settlement has many potential advantages as it can result, for example, in consumers obtaining compensation earlier than would otherwise be the case, the saving of FCA and industry resources, messages getting out to the market sooner and a public perception of timely and effective action. The FCA therefore considers it is in the public interest for matters to settle, and settle early, if possible.
1Settlements in the FCA context are not the same as ‘out of court’ settlements in the commercial context. An FCA settlement is a regulatory decision, taken by the FCA, the terms of which are accepted by the firm or individual concerned. So, when agreeing the terms of a settlement, the FCA will carefully consider its statutory objectives and other relevant matters such as the importance of sending clear, consistent messages through enforcement action, and will only settle in appropriate
3An insurer must ensure that any condition or warranty included in a policy with a consumer:(1) has operative effect only in relation to the types of crystallised risk covered by the policy that are connected to that condition or warranty; and(2) (for a warranty in a pure protection contract) is material to the risks to which it relates and is drawn to the customer’s attention before the conclusion of the contract.
A consumer has a right to cancel any of the following contracts with a firm:
Cancellable contract |
Cancellation period |
Supplementary provisions |
Life and pensions: |
||
• a life policy (including a pension annuity, a pension policy or within a wrapper) • a contract to join a personal pension scheme or a stakeholder pension scheme • a pension contract • a contract for a pension transfer • a contract to vary an existing personal pension scheme or stakeholder pension scheme by exercising, for the first time, an option to make income withdrawals6 |
30 calendar days |
For a life policy effected when opening or transferring a wrapper, the 30 calendar day right to cancel applies to the entire arrangement For a contract to buy a unit in a regulated collective investment scheme within a pension wrapper, the cancellation right for 'non-life/pensions (advised but not at a distance)' below may apply Exemptions may apply (see COBS 15 Annex 1 ) |
6Lifetime ISAs (advised but not at a distance): |
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6• a non-distance contract to open or transfer a lifetime ISA |
30 calendar days |
These rights arise only following a personal recommendation of the contract (by the firm or any other person). Exemptions may apply (see COBS 15 Annex 1) |
Cash deposit ISAs: |
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• a contract for a cash deposit ISA |
14 calendar days |
Exemptions may apply (see COBS 15 Annex 1 ) |
Non-life/pensions (advised but not at a distance): a non-distance contract:6 |
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• to buy a unit in a regulated collective investment scheme (including within a wrapper or pension wrapper) • to open or transfer a child trust fund (CTF) • to open or transfer an ISA (other than a lifetime ISA)6 • for an Enterprise Investment Scheme 2 |
14 calendar days |
These rights arise only following a personal recommendation of the contract (by the firm or any other person).2 For a unit bought when opening or transferring a wrapper or pension wrapper, the 14 calendar day right to cancel applies to the entire arrangement.2 Exemptions may apply (see COBS 15 Annex 1 ).2 |
Non-life/pensions (at a distance): a distance contract, relating to:6 |
||
14 calendar days |
Exemptions may apply (see COBS 15 Annex 1 ) |
|
[Note: article186 of the Solvency II Directive and5 article 6(1) of the Distance Marketing Directive]
5(1) The firm must disclose to the consumer:(a) in good time before or, if that is not possible, immediately after the consumer is bound by a contract that attracts a right to cancel or withdraw; and(b) in a durable medium;the existence of the right to cancel or withdraw, its duration and the conditions for exercising it including information on the amount which the consumer may be required to pay, the consequences of not exercising it and practical instructions for exercising
Where a firm provides services to a consumer by way of a distance contract, the firm must provide the consumer with the following information in a durable medium in good time before the distance contract has been agreed:(1) the information which is required by MCOB 4.4A.1 R to MCOB 4.4A.8A R;22(2) whether or not the firm will be providing the consumer with advice;(3) the name and the main business of the firm, the geographical address at which it is established and any other geographical
(1) MCOB 4.4A.18 R contains the additional disclosure requirements for firms providing mortgage mediation activities to a consumer by way of a distance contract. MCOB 4.5 and MCOB 4.6 contain further rules and guidance applicable where firms enter into a distance contract in respect of their home finance mediation activities independent of any contractual arrangement with a consumer relating to a particular home finance transaction or transactions.(2) There is guidance on distance
(1) 2An MCD mortgage lender or an MCD credit intermediary may comply with MCOB 4.4A.18R (3) and (5) to MCOB 4.4A.18R (9) by providing an ESIS to the consumer prior to the conclusion of the MCD regulated mortgage contract. (2) Provided that the provisions of MCOB 4.4A on the methods and timing of disclosure are complied with, an MCD mortgage lender or an MCD credit intermediary may comply with MCOB 4.4A.18R (1), (2) and MCOB 4.4A.18R (4) by providing the necessary information in
(1) As soon as a SRB agreement provider agrees the key terms of a proposed regulated sale and rent back agreement with a SRB agreement seller and before he becomes contractually committed to enter into the agreement, the SRB agreement provider must provide the seller with a written pre-offer document summarising its key terms (Stage One).(2) The written pre-offer document must be in the form prescribed by MCOB 6 Annex 2 R and must be adapted by the firm, as appropriate, to the
The SRB agreement provider must keep a record of the written pre-offer document at Stage One and the written offer document for signing at Stage Two for a period of:(1) one year after the end of the fixed term of the tenancy under the regulated sale and rent back agreement; or(2) five years from the date of the disclosures and warnings, written offer documents and cooling-off period notices;whichever is the longer.
2When the FCA1 decides whether to make a prohibition order against an approved person and/or withdraw their1 approval, the FCA will consider all the relevant circumstances of the case. These may include, but are not limited to those set out below. (1) The matters set out in section 61(2) of the Act.
(2) Whether the individual is fit and proper to perform functions in relation to regulated activities. The criteria for assessing the fitness and propriety of
2The following are examples of types of behaviour which have previously resulted in FCA the deciding to issue a prohibition order or withdraw the approval of an approved person:(1) Providing false or misleading information to the FCA; including information relating to identity, ability to work in the United Kingdom, and business arrangements;
(2)
Failure to disclose material considerations on application forms, such as details of County
1Where the FCA believes that a company or partnership to which sections 359(1) and 367(1) of the Act applies is, or is likely to become, unable to pay its debts, the FCA will consider whether it is appropriate to seek an administration order or a compulsory winding up order from the court. The FCA's approach will be in two stages: the first is to consider whether it is appropriate to seek any insolvency order; the second is to consider which insolvency order will meet, or is likely
1In determining whether it is appropriate to seek an insolvency order on this basis, the FCA will consider the facts of each case including, where relevant: (1) whether the company or partnership has taken or is taking steps to deal with its insolvency, including petitioning for its own administration, placing itself in voluntary winding up or proposing to enter into a company voluntary arrangement, and the effectiveness of those steps; (2) whether any consumer or other creditor
This section2 applies:935510(1) in relation to sales data reports, to a firm:1010(a) which is a home finance provider; or(b) which has permission to enter into a regulated credit agreement as lender in respect of high-cost short-term credit or home credit loan agreements; or(c) which is, in respect of sales to a retail client or a consumer:(i) an insurer; or(ii) the manager of an authorised AIF or a UCITS scheme; or(iii) the operator of an investment trust savings scheme, or a
(1) The purpose of this section2 is to set out the requirements for firms in the retail mortgage, investment, consumer credit lending8 and pure protection contract markets specified in SUP 16.11.1 R to report individual product sales data, and to report individual performance data on regulated mortgage contracts,7 to the FCA17. In the case of firms in the sale and rent back market, there is a requirement to record, but not to submit, sales7data.6 These requirements apply6 whether
1It is not possible to provide an exhaustive list of the situations that will give rise to such serious concerns, but they are likely to include one or more of the following characteristics: (1) information indicating significant loss, risk of loss or other adverse effects for consumers, where action is necessary to protect their interests; (2) information indicating that a firm's conduct has put it at risk of being used for the purposes of financial crime, or of being otherwise
1The FCA will consider the full circumstances of each case when it decides whether an urgent variation of Part 4A permission or an imposition of a requirement is appropriate. The following is a non-exhaustive list of factors the FCA may consider. (1) The extent of any loss, or risk of loss, or other adverse effect on consumers. The more serious the loss or potential loss or other adverse effect, the more likely it is that the FCA’s urgent exercise of own-initiative powers will
1 The Mortgage Credit Directive (MCD) allows for an exemption not to apply the MCD to buy-to-let lending if there is in place an appropriate framework for the regulation of these mortgages. The Mortgage Credit Directive Order 2015 (MCDO) is the vehicle through which the framework for “consumer buy-to-let” (CBTL) mortgages has been established in order to comply with the MCD.
(1) A firmcommunicating or approving a non-real time financial promotion of qualifying credit other than in (2), for a home reversion plan or a regulated sale and rent back agreement must be able to show that it has taken reasonable steps to ensure that the non-real time financial promotion is fair, clear and not misleading. (2) A firmcommunicating a financial promotion, or approving a non-real time financial promotion in relation to an MCD regulated mortgage contract must ensure
Waivers can affect the legal rights of third parties, including consumers. In the appropriate regulator's4 view it is important that the fact and effect of such waivers should be transparent. So the fact that a waiver relates to a rule that is actionable under section 138D4 of the Act (see SUP 8.6.2 G (1)) will tend to argue in favour of publication.44
In considering whether commercial interests would be prejudiced to an unreasonable degree (see SUP 8.6.2 G (2)), the appropriate regulator4 will weigh the prejudice to firms' commercial interests against the interests of consumers, markets and other third parties in disclosure. In doing so the appropriate regulator4 will consider factors such as the extent to which publication of the waiver would involve the premature release of proprietary information to commercial rivals, for
2When considering whether to grant or refuse an application to revoke or vary a prohibition order, the FCA will consider all the relevant circumstances of a case. These may include, but are not limited to: (1) the seriousness of the misconduct or other unfitness that resulted in the order; (2) the amount of time since the original order was made; (3) any steps taken subsequently by the individual to remedy the misconduct or other unfitness; (4) any evidence which, had it been
2The FCA will not generally grant an application to vary or revoke a prohibition order unless it is satisfied that: the proposed variation will not result in a reoccurrence of the risk to consumers or confidence in the financial system that resulted in the order being made; and the individual is fit to perform functions in relation to regulated activities generally, or to those specific regulated activities in relation to which the individual has been prohibited. The FCA will
1The Payment Accounts Regulations 2015 (“the PARs”) implement the Payment Accounts Directive. They entitle consumers who hold a payment account (such as a current account) to receive certain information about the fees and charges applied to that account. They also entitle consumers to use a switching service which meets certain minimum standards, if they wish to change their payment account to another provider.
The PARs impose various obligations on payment account providers, such as a duty to disclose certain information when offering a packaged account to a consumer (i.e. the costs and fees of the products or services included in the package). They also introduce an obligation to offer a switching service between payment accounts. The PARs also require credit institutions designated by Her Majesty’s Treasury to provide eligible consumers with access to basic banking services.
The power to impose a suspension, restriction, condition,4 limitation or disciplinary prohibition4 is a disciplinary measure which the FCA2 may use in addition to, or instead of, imposing a financial penalty
or issuing a public censure.
The principal purpose of imposing such a measure3 is to promote
high standards of regulatory and/or market conduct by deterring persons who have committed breaches from
committing further breaches,
helping to deter other persons from
committing
The powers to impose a suspension, restriction, condition or limitation3 in relation
to authorised persons and approved persons, and to impose a disciplinary prohibition in relation to individuals,4 are disciplinary measures;2 where the FCA2 considers it necessary to take action, for example, to protect consumers from an authorised
person, the FCA2 will seek to cancel or vary the authorised
person'spermissions.
If the FCA2 has
concerns with a person's fitness
to be approved, and