Related provisions for FEES 13.2.10
81 - 100 of 605 items.
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
2(1) A firmarranging a payment protection contract must:2(a) 2take reasonable steps to ensure that the customer only buys a policy under which he is eligible to claim benefits; and(b) 2if, at any time while arranging the policy, it finds that parts of the cover do not apply, inform the customer so he can take an informed decision on whether to buy the policy.(2) This rule does not apply to payment protection contractarranged as part of a packaged bank account.2
2(1) For a typical payment protection contract the reasonable steps required in the first part of the eligibility rule are likely to include checking that the customer meets any qualifying requirements for different parts of the policy.2(2) 2This guidance does not apply to payment protection contractsarranged as part of a packaged bank account.
(1) 32Throughout the term of a policy included in a packaged bank account, a firm must provide the customer with an eligibility statement, in writing,3 on an annual basis. This statement must set out any qualifying requirements to claim each of the benefits under the policy and recommend that the customer reviews his circumstances and whether he meets these requirements.(2) 3Where a customer has reached an age limit on claiming benefits under a travel insurance policy included
(1) A rate of interest for the purpose of CONC 3.5.3R (1) is not limited to an annual rate of interest but would include a monthly or daily rate or an APR. It would also include reference to 0% credit (but where the APR is 0% and CONC 3.5.3R(2A) applies, a representative example is not required)4. An amount relating to the cost of credit would include the amount of any fee or charge, or any repayment of credit (where it includes interest or other charges).3[Note: paragraph 6.7
(1) A financial promotion must include the representative APR if it: (a) states or implies that credit is available to individuals who might otherwise consider their access to credit restricted; or323(b) includes a favourable comparison relating to the credit, whether express or implied, with another person, product or service; or3(c) includes an incentive 3to apply for credit or to enter into an agreement under which credit is provided.[Note: regulation 6 of CCAR 2010]3(2) The
(1) A financial promotion must include a clear, concise and prominent3 statement in respect of any obligation to enter into a contract for an ancillary service where:(a) the conclusion of that contract is compulsory in order to obtain the credit or to obtain it on the terms and conditions promoted; and (b) the cost of that ancillary service cannot be determined in advance.[Note: regulation 8 of CCAR 2010](2) The statement in (1) must be presented together with any representative
(1) A financial promotion must not include: (a) the word “overdraft” or any similar expression as describing any agreement for running-account credit, except where an agreement enables a customer to overdraw on a current account;(b) the expression “interest free” or any similar expression indicating that a customer is liable to pay no greater amount in respect of a transaction financed by credit than he would be liable to pay as a cash purchaser for the like transaction, except
Sections 250 and 261L11 of the Act and regulation 7 of the OEIC Regulations allow the FCA12 to waive the application of certain rules in COLL to:111210(1) a person, as respects a particular AUT, ACS11 or ICVC, on the application or with the consent of that person; and(2) an AUT, ACS11 or ICVC on the application or with the consent of the manager and trustee (in the case of an AUT), the authorised contractual scheme manager and depositary (in the case of an ACS)11 or the ICVC and
Subject to certain limited exceptions, where the rules in MCOB 4.8A apply to a firm they restrict execution-only sales (which term is defined to include variations of existing contracts) to cases where:(1) there is no spoken or other interactive dialogue between the firm and the customer during the sale; or(2) if there is spoken or other interactive dialogue between the firm and the customer during the sale:(a) the customer is a high net worth mortgage customer; or(b) the customer
(1) MCOB 4.8A.7 R does not apply in the case of a variation of a regulated mortgage contract, provided that:(a) the variation would not involve the customer taking on additional borrowing beyond the amount currently outstanding under the existing regulated mortgage contract, other than to finance any product fee or arrangement fee for the proposed new or varied contract; and(b) where the variation will (in whole or part) change from one interest rate to another, the firm has presented
A firm must not enter into or arrange an execution-only sale for a regulated mortgage contract unless, except as provided in MCOB 4.8A.15 R:(1) for a new regulated mortgage contract not falling within MCOB 4.8A.10 R, the customer has identified the regulated mortgage contract he wishes to purchase, specifying to the firm at least the following information:(a) the name of the mortgage lender;(b) the rate of interest;(c) the interest rate type (that is, whether fixed, variable or
A firm which intends to transact execution-only sales in regulated mortgage contracts must have in place and operate in accordance with a clearly defined policy which:(1) sets out the amount of business the firm reasonably expects to transact by way of execution-only sales and the steps to be taken by the firm if that business exceeds the expected levels; and(2) sets out its processes and procedures for ensuring compliance with the rules in MCOB 4.8A; in particular:(a) how it
(1) Whenever a firmenters into or arranges an execution-only sale for a regulated mortgage contract, it must make and maintain a record of:(a) the information provided by the customer which satisfies MCOB 4.8A.14R (1), (2) or (3);(b) the information in durable medium in MCOB 4.8A.14R (4);(c) (where applicable) the confirmation by the customer in MCOB 4.8A.14R (5); and(d) any advice from the firm which the customer rejected, including the reasons why it was rejected, before deciding
(1) The scheme property of a qualified investor scheme may, subject to the rules in this chapter, comprise any assets or investments to which it is dedicated.(2) The instrument constituting the fund10 and the prospectus may further restrict:10(a) the kinds of assets in which the scheme property may be invested;(b) the types of transactions permitted and any relevant limits; and(c) the borrowing powers of the scheme.
The scheme property of a qualified investor scheme must, except where otherwise provided by the rules in this chapter, consist only of one or more of the following to which it is dedicated:(1) any specified investment:(a) within articles 74 to 86 of the Regulated Activities Order; and(b) within article 89 (Rights to or interests in investments) of the Regulated Activities Order where the right or interest relates to a specified investment within (a);(2) an interest in an immovable3
(1) An authorised fund manager must take reasonable care to determine the following when entering into any transaction in derivatives or any commodity contract which may result in any asset becoming part of the scheme property:(a) if it is an asset in which the scheme property could be invested, that the transaction:(i) can be readily closed out; or(ii) would at the expected time of delivery relate to an asset which could be included in the scheme property under the rules in this
(1) The ICVC or depositary of an AUT or ACS9 (on the instructions of the authorised fund manager)9 may borrow money for the use of the authorised fund on terms that the borrowing is to be repayable out of the scheme property.99(2) The authorised fund manager must ensure that the authorised fund's borrowing does not, on any day, exceed 100 % of the net value of the scheme property and must take reasonable care to ensure that arrangements are in place that will enable borrowings
(1) In relation to the appointment of a valuer the authorised fund manager must:(a) at the outset appoint the standing independent valuer with the approval of the depositary and likewise upon any vacancy; and(b) ensure that any immovables in the scheme property are valued by an appropriate valuer (standing independent valuer) appointed by the authorised fund manager.(2) The following apply in relation to the functions of the standing independent valuer:(a) the authorised fund
For the purposes of the overall liquidity adequacy rule, liquidity resources are not confined to the amount or value of a firm's marketable, or otherwise realisable, assets. Rather, in assessing the adequacy of those resources, a firm should have regard to the overall character of the resources available to it which enable it to meet its liabilities as they fall due. Therefore, for the purposes of that rule, a firm should ensure that:(1) it holds sufficient assets which are
The overall liquidity adequacy rule is expressed to apply to each firm on a solo basis. Each firm must be able to satisfy that rule relying solely on its own liquidity resources. Where the firm is an incoming EEA firm or a third country BIPRU firm, compliance with the overall liquidity adequacy rule with respect to the UK branch must be achieved relying solely on liquidity resources that satisfy the conditions in BIPRU 12.2.3R.
BIPRU 12.5 sets out the ILAS framework. That section describes some of the stress tests that a standard ILAS BIPRU firm must carry out in conducting its ILAA and identifies a number of sources of liquidity risk in relation to which a firm is required to assess the impact of those stresses. For a standard ILAS BIPRU firm, the requirements in BIPRU 12.5 are in addition to the stress testing requirements in BIPRU 12.4. The rules in BIPRU 12.5 require a standard ILAS BIPRU firm
Client assets report
Whether in the auditor's opinion |
||
(1) |
the firm has maintained systems adequate to enable it to comply with the custody rules (except CASS 6.7)13, the collateral rules,5 the client money rules3 (except CASS 5.2)13, the debt management client money rules9 and the mandate rules5 throughout the period ;5 353 |
1
|
(2) |
the firm was in compliance with the custody rules (except CASS 6.7)13, the collateral rules,5 the client money rules3 (except CASS 5.2), the debt management client money rules9 and the mandate rules5,13 at the date as at which the report has been made; 353 |
1
|
(3) |
in the case of an investment management firm, personal investment firm, a UCITS firm,2securities and futures firm, firm acting as trustee or depositary of an AIF, firm acting as trustee or depositary of a UCITS7 or IFPRU investment firm8or BIPRU firm8,2 when a subsidiary of the firm is during the period 5a nominee company in whose name custody assets of the firm are registered during the period, 5 that nominee company has maintained throughout the period5 systems for the custody, identification and control of custody assets which: 2285 |
|
(a) |
were5 adequate; and 5 |
|
(b) |
included5 reconciliations at appropriate intervals between the records maintained (whether by the firm or the nominee company) and statements or confirmations from custodians or from the person who maintained5 the record of legal entitlement; and 55 |
|
(4) |
if there has been a secondary pooling event during the period, the firm has 1complied with the rules in943CASS 5.6 and CASS 7A43 (Client money distribution)1and CASS 11.13 (debt management client money distribution rules)9 in relation to that pooling event. 3 |
1
|
(1) 5Whether or not an auditor concludes that one or more of the requirements specified in SUP 3.10.5 R (1) to (4) has or have been met, the auditor must ensure that the client assets report identifies each individual rule in respect of which a breach has been identified.(2) 5If an auditor does not identify a breach of any individual rule, it must include a statement to that effect in the client assets report.
(1) 5The FCA expects that the list of breaches will include every breach of a rule in CASS insofar as that rule is within the scope of the client assets report and is identified in the course of the auditor’s review of the period covered by the report, whether identified by the auditor or disclosed to it by the firm, or by any third party.(2) 5For the purpose of determining whether to qualify its opinion or express an adverse opinion, the FCA would expect an auditor to exercise
(1) Before significantly increasing:(a) the amount of credit to be provided under a regulated credit agreement; or(b) a credit limit for running-account credit under a regulated credit agreement;the lender must undertake an assessment of the customer's creditworthiness. [Note: section 55B(2) of CCA](2) A firm carrying out the assessment in (1) must consider: (a) the potential for the commitments under the regulated credit agreement to adversely impact the customer's financial
(1) 2This rule applies if, in relation to a regulated credit agreement: (a) an individual other than the borrower (in this rule referred to as “the guarantor”) has provided a guarantee or an indemnity (or both); and(b) the lender is required to undertake an assessment of the customer under CONC 6.2.1R.(2) Before doing either of the things mentioned in (1), the lender must undertake an assessment of the potential for the guarantor’s commitments in respect of the regulated credit
Where CONC 6.2.1 R or CONC 6.2.1AR2 applies to a firm: [Note: paragraph 4.2 of ILG](1) the firm must comply with CONC 5.3.2 R, CONC 5.3.4 R, CONC 5.3.5 R, CONC 5.3.6 R and CONC 5.3.7 R(2) the rules in CONC 5.3 referred to in (1) apply with the modifications necessary to take into account that CONC 6.2.1 R concerns increases in the amount of credit and in credit limits and when the increase is to take place;2(3) the guidance in CONC 5.3 applies accordingly and CONC 5.2.3 G and
A firm must consider sufficient information available to it at the time of the increase referred to in CONC 6.2.1 R to enable it to make a reasonable assessment required by that rule or CONC 6.2.1AR. The provision of the guarantee or indemnity (or both), and the assessment of the guarantor, does not remove or reduce the obligation on the firm to carry out an assessment of the borrower under CONC 6.2.1R. Firms are reminded of the rule in CONC 5.3.4R that the assessment of the borrower
The requirements imposed on a CASS debt management firm that holds client money vary depending on whether a firm is classified as a CASS small debt management firm or a CASS large debt management firm in CASS 11.2.3 R (CASS debt management firm types). CASS 11.1.4 R to CASS 11.1.6 R indicate which rules in the debt management client money chapter apply to which category of firm.
Subject to CASS 11.1.6 R, only the rules and guidance in the debt management client money chapter listed in the table below apply to CASS small debt management firms.
Reference |
Rule |
Application |
|
Firm classification |
|
Responsibility for CASS operational oversight |
|
Definition of client money and discharge of fiduciary duty |
|
Organisational requirements |
|
Statutory trust |
|
Selecting an approved bank at which to hold client money |
|
Client bank account acknowledgement letters |
|
Segregation and the operation of client money accounts |
|
Payments to creditors |
|
CASS 11.11.1 R to CASS 11.11.12 R , CASS 11.11.30 R and CASS 11.11.32 G |
Records, accounts and reconciliations |
CASS 11 resolution pack |
|
Client money distribution in the event of a failure of a firm or approved bank |
(1) An authorised professional firm regulated by the Law Society of England and Wales, the Law Society of Scotland or the Law Society of Northern Ireland that, with respect to its regulated activities, is subject to the following rules of its designated professional body, must comply with those rules and, if it does so, it will be deemed to comply with the debt management client money chapter.(2) The relevant rules are: (a) if the firm is regulated by the Law Society of England
1This chapter applies, unless otherwise stated in or in relation to a rule, to:(1) a firm with respect to consumer credit lending;(2) a firm with respect to consumer hiring;(3) a firm with respect to operating an electronic system in relation to lending, in relation to a borrower under a P2P agreement;(4) a firm with respect to debt collecting.
(1) In accordance with CONC 1.2.2 Rfirms must ensure that their employees and agents comply with CONC and must take reasonable steps to ensure that other persons acting on the firm's behalf act in accordance with CONC.(2) The rule in CONC 1.2.2 R is particularly important in relation to the requirements in CONC 7, for example, in dealing with an individual from whom the person referred to in the rule is seeking to collect a debt.(3) In this chapter the expression “arrears” includes
(1) 2In this chapter, except for CONC 7.6.15AG:(a) a reference to a borrower, a customer or a hirer includes a reference to an individual other than the borrower or the hirer (in this chapter, referred to as “the guarantor”) who has provided a guarantee or an indemnity (or both) in relation to:(i) a regulated credit agreement; or(ii) a regulated consumer hire agreement; or(iii) a P2P agreement in respect of which the borrower is an individual;where it would not do so but for this
An authorised
professional firm regulated by The Law Society (of England and
Wales), The Law Society of Scotland or The Law Society of Northern Ireland that, with respect to its regulated activities, is subject to 7the rules of its designated professional
body as specified in CASS 5.1.4 R, in force on 14 January
2005, must comply with those
rules7 and if it does so, it will be deemed
to comply with CASS
5.2 to CASS 5.6.7
For the purposes of CASS 5.1.3 R the
relevant rules are:(1) If
regulated by the Law Society (of England and Wales);(a) the
Solicitors' Accounts Rules 1998; or(b) where
applicable, the Solicitors Overseas Practice Rules 1990;(2) if
regulated by the Law Society of Scotland, the Solicitors' (Scotland) Accounts,
Accounts Certificate, Professional Practice and Guarantee Fund Rules 2001;(3) if
regulated by the Law Society of Northern Ireland, the Solicitors' Accounts
Regulations 19
(1) 3A firm will, subject to (3), be deemed to comply
with CASS 5.3 to CASS
5.6 if it receives or holds client
money and it either:2(a) in relation to a service charge,
complies with the requirement to segregate such money in accordance with section
42 of the Landlord and Tenant Act 1987 ("the 1987 Act"); or2(b) in relation to money which is clients'
money for the purpose of the Royal Institution of Chartered Surveyors' Rules
of Conduct ("RICS rules") in force as at 14 January
(1) Principle 10 (Clients' assets) requires a firm to arrange adequate protection for clients' assets when the firm is
responsible for them. An essential part of that protection is the proper accounting
and handling of client money.
The rules in CASS 5.1 to CASS
5.6 also give effect to the requirement in article 4.4 of the Insurance
Mediation Directive5 that all necessary measures should
be taken to protect clients against
the inability of an insurance intermediary to
transfer
4The FCA must consult the PRA before publishing or deciding not to publish a waiver which relates to:(1) a PRA-authorised person; or(2) an authorised person who has as a member of its immediate group a PRA-authorised person;unless the waiver relates to rules made by the FCA under sections 247 or 248 of the Act.
When considering whether it is satisfied under section 138B(2)4, the appropriate regulator4 is required by section 138B(3)4 of the Act:444(1) to take into account whether the waiver relates to a rule contravention of which is actionable under section 138D4 of the Act (Actions for damages); Schedule 5 identifies such rules;4(2) to consider whether its publication would prejudice, to an unreasonable degree, the commercial interests of the firm concerned, or any other member of its
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
So that a CASS debt management firm may check that it has sufficient money segregated in its client bank accounts to meet its obligations to clients for whom it is undertaking debt management activity, it is required periodically to carry out reconciliations of its internal records and accounts to check that the total amount of client money that it should have segregated in client bank accounts is equal to the total amount of client money it actually has segregated in client bank
For a CASS small debt management firm to demonstrate it has maintained its records and accounts in a way envisaged by CASS 11.11.3 R, it should carry out checks of its internal records and accounts that are reasonable and proportionate to its business. CASS 11.11.8 R provides a rule that a CASS small debt management firm is obliged to follow to meet this obligation.
This table belongs to MCOB 9.1.3 R
Section of MCOB 9 |
Applies in relation to an equity release transaction as set out in the following rules:2 2 |
(1) 3This chapter does not apply to an MCD lifetime mortgage, except as set out in (2) to (3), below.(2) MCOB 9.4.33 R, MCOB 9.4.35 R, MCOB 9.4.62 R and MCOB 9.4.63 R apply to the extent specified by MCOB 5A.6.2 R.(3) MCOB 9.6 to MCOB 9.8 apply, except for rules that modify or replace MCOB 7.6.7R to MCOB 7.6.17R (because those rules do not apply to an MCD mortgage lender or an MCD mortgage credit intermediary, MCOB 7B applies instead: see MCOB 7.1.2AR and MCOB 7.1.2BG).
The records maintained under this section, including the sub-pool disclosure documents, are a record of the firm that must be kept in a durable medium for at least five years following the date on which client money was last held by the firm for a sub-pool to which those records or the sub-pool disclosure document applied.
Table of application
This table belongs to COLL 6.5.1 R.
Depositary of an ICVC |
Authorised fund manager of an AUT or ACS3 3 |
Depositary of an AUT or ACS3 3 |
||||
6.5.1R |
x |
x |
x |
x |
x |
x |
6.5.3R |
x |
x |
x |
x |
||
6.5.4R |
x |
x |
x |
|||
6.5.5R |
x |
x |
||||
6.5.6R |
x |
x |
||||
6.5.7R |
x |
x |
||||
6.5.8R |
x |
x |
||||
6.5.9R |
x |
x |
||||
6.5.10R |
x |
x |
x |
x |
||
Note: "x" means "applies", but not every paragraph in every rule will necessarily apply. |
||||||
If the ICVC ceases to have any directors, the depositary may:(1) retain the services of an authorised person to carry out the functions referred to in COLL 6.6.3 R (3)(a) and (b); or(2) manage the scheme property itself on behalf of the ICVC until a director is appointed or the winding up of the ICVC is commenced provided it is not prohibited from doing so by any law or rule.
(1) The authorised fund manager of an AUT or ACS3 has the right to retire in favour of another person eligible under the Act and approved in writing by the depositary3 upon:33(a) the retiring authorised fund manager3 appointing that person by deed as authorised fund manager3 in its place and assigning to that person all its rights and duties as such a authorised fund manager3; and333(b) the new authorised fund manager3 entering into such deeds as the depositary3 reasonably considers
(1) If any of the details relating to:(a) the arrangements in relation to any of a firm'sFCA-approved SMF managers; or(b) any FCA-designated senior management functions of one of its FCA-approved SMF managers;are to change, the firm must notify the FCA on Form D (SUP 10A Annex 7R).(2) The notification under (1) must be made as soon as reasonably practicable after the firm becomes aware of the proposed change.(3) This rule does not apply to anything required to be notified under
(1) If a firm becomes aware of information which would reasonably be material to the assessment of the fitness and propriety of an FCA-approved SMF manager, or of candidate to be one (see FIT), it must inform the FCA either:(a) on Form D; or(b) if it is more practical to do so and with the prior agreement of the FCA, by email or fax;as soon as practicable and, in any case, within seven business days.(2) This rule does not apply to anything required to be notified under SUP 10C.14.7R
If a firm is required to notify the FCA about an FCA-approved SMF manager under any of the following:(1) section 63(2A) of the Act (Duty to notify regulator of grounds for withdrawal of approval); or2(2) [deleted]2(3) section 64C of the Act (Requirement for relevant authorised persons to notify regulator of disciplinary action);it must give that notification:(4) under SUP 10C.14.5R (Form C) if that rule applies; (5) under SUP 10C.14.7R (Qualified Form C) if that rule applies;
(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 home finance transaction is an equity release transaction, except that those provisions that by their nature are only relevant to regulated mortgage contracts do not apply to home reversion plans (see MCOB 9.1.2A G).33(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
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 an equity release transaction2 2 |
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 lifetime mortgage2 2 |
MCOB 5.3.2G |
||
4Messages to be given when providing information on equity release transactions |
MCOB 4.4A.1R (1), MCOB 4.4A.2 R and MCOB 4.4A.4R (1), each as applied by MCOB 8.3.1 R in modified form |
||
4Messages to be given when customer requests an execution-only sale |
|||
MCOB 9 Annex 1 R for a lifetime mortgage; MCOB 9 Annex 2 R for a home reversion plan. |
|||
MCOB 5.4.24G |
MCOB 5.6.74R |
||
4Provision of illustrations: timing |
MCOB 4.8A.14R (1), (2) or (3) |
||
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) |
Table of rules in MCOB 5 replaced by rules in MCOB 9: This table belongs to MCOB 9.3.1R
Subject |
Rule(s) or guidance |
Rule(s) or guidance replaced by: |
Accuracy of the illustration |
||
Providing anillustration |
MCOB 5.5.15R - |
MCOB 9.3.12R - |
Content ofillustration |
MCOB 5.6 |
MCOB 9.4 |