Related provisions for BIPRU 7.8.29
1 - 20 of 412 items.
An illustration provided to a customer must:(1) contain the material set out in the relevant annex to this chapter in the order and using the numbered section headings, sub-headings and text prescribed, except where this section provides otherwise;88(2) follow the format of the template in 8the relevant annex to this chapter8, with:(a) prominent use of the Key facts5 logo followed by the text 'about this lifetime mortgage' or 'about this home reversion plan'8;55(b) each section
(1) Further requirements regarding the use of the Key facts logo and the location of specimens are set out in GEN 5.1 and GEN 5 Annex 1 G.55(2) MCOB 9.4.2 R(3) does not prevent the use of different fonts and typefaces for headings and risk warnings. Its purpose is to prevent particular sections of the illustration from being made less prominent than other sections through the inconsistent use of font sizes and typefaces.(3) The illustration can contain the equity release provider's
In relation to the price or value of the property8, in order for the firm to comply with the principle that an illustration should be clear, fair and not misleading8, an estimated valuation, where the estimated valuation is not that provided by the customer, must be a reasonable assessment based on all the facts available at the time. For example, an overstated valuation could enable a more attractive lifetime mortgage7 to be illustrated on the basis of a lower ratio of the loan
(1) In estimating the term of a lifetime mortgage or an open-ended instalment reversion plan,8 a firm must:8(a) use an estimate of the life expectancy of the customer that is reasonable and based on evidence12; and2(b) for the purposes of the illustration, where the estimate of12 life expectancy is not a whole number of12 years, the term should be rounded up to the next whole year (for example, if the life expectancy12 is between fifteen and sixteen years, an estimated term of
The following information must be included at the head of the illustration: (1) the customer's name;(2) the date of issue of the illustration;(3) details of how long the illustration is valid for, and whether there is any date by which the equity release transaction8 covered by the illustration needs to commence (for example, where a fixed interest rate is only available if the lifetime mortgage8 commences before a certain date); and8(4) the prescribed text at the head of the
Under the section heading "Description of this mortgage" the illustration must:(1) state the name of the mortgage lender providing the lifetime mortgage7 to which the illustration relates (a trading name used by the mortgage lender may also be stated in accordance with MCOB 9.4.2 R(6)), and the name, if any, used to market the lifetime mortgage;777(2) include a statement describing the lifetime mortgage;77(3) if the lifetime mortgage7 is linked to an investment, and payments required
Examples of types of statement that would satisfy MCOB 9.4.24 R(2) are as follows (more than one may apply to particular types of lifetime mortgage7):7(1) For an interest roll-up mortgage12: "You do not have to make any repayments during the life of this lifetime mortgage. The loan, all of the interest and charges due to [name of mortgage lender] will be repaid from the sale of your home. This will happen on your death [or the death of the last borrower] or if you move home (either
MCOB 9.4.27 R sets out some examples of descriptions of interest rate types and rates of interest that must be used in the illustration to comply with MCOB 9.4.24 R(4). If an interest rate is not described in MCOB 9.4.27 R, it must be presented in the illustration in a way that is consistent with the descriptions in MCOB 9.4.27 R.
Description of interest rate types and rates of interest. This table belongs to MCOB 9.4.26R:
Description of the interest rate |
Amount payable in each instalment (if applicable) |
Lender's base mortgage rate - must be described as the [Lender]'s standard variable rate, currently X%, [where applicable insert the date at which the interest rate ends or period for which the interest rate applies]. |
Amount based on X%. |
Fixed rate - must be described as fixed rate of X% [where applicable insert the date at which the interest rate ends or the period for which the interest rate applies]. |
Amount based on the fixed rate of X%. |
Discounted rate - must be described as a variable rate, currently X%, with a discount of Y% [where applicable insert the date at which the discount ends or the period for which the discount applies], giving a current rate payable of Z%. |
Amount based on Z%. |
Capped rate - must be described as a variable rate, currently X%, which will not go above a ceiling of Y% [where applicable insert the date at which the capped interest rate ends or the period for which the capped interest rate applies]. |
Amount based on the current interest rate payable (X%). |
Capped and collared - must be described as a variable rate, currently X%, which will not go below a floor of Y% or above a ceiling of Z% [where applicable insert the date at which the capped and collared interest rate ends or the period for which the capped and collared interest rate applies]. |
Amount based on the current interest rate payable (X%). |
Tracker rate - must be described as a variable rate which is [X% above/X% below/the same as] [insert interest rate tracked, currently Z%], [where applicable insert the date at which the interest rate ends or the period for which the interest rate applies], to give a current rate payable of Y%. Details should also be provided of how soon after an interest rate change the mortgage interest rate is adjusted. |
Amount based on Y%. |
Deferred rate - must be described as a variable rate, currently X%, where Y% is not paid now but is added to your mortgage [where applicable insert the date at which the deferred interest rate ends or the period for which the deferred interest rate applies], to give a current rate payable of Z%. |
Amount based on Z%. |
Stepped rate where different interest rates apply over different time periods (for example, fixed interest rate in year 1 changes in year 2). Each element should be dealt with individually as above. |
Amount for each of the 'steps'. |
Combinations of the above must be treated in the same way as the descriptions above, (for example, if a discounted interest rate has a 'floor' then it must be described as such). |
Follow the above treatment depending on the combination. |
Where the loan under the lifetime mortgage7 is divided into more than one part (for example where part of the loan is a fixed interest rate and part of the loan is a discounted variable interest rate) and the firm displays this in a tabular format in the illustration:7(1) the following text must be used to introduce the table "As this lifetime mortgage is made up of more than one part, these parts are summarised below:";(2) each part must be numbered for ease of reference in the
Examples of text that would satisfy MCOB 9.4.31 R(1), depending on the nature of the7lifetime mortgage,7 are:(1) "This lifetime mortgage will provide a lump sum of £[x].";(2) "The amount you are borrowing will automatically be used to purchase a [name of linked investment product] from [name of provider]. The amount is £[x]."; and(3) "You will receive a monthly [or such other frequency as is applicable] payment from the start of your lifetime mortgage. This will be £ [state a
The illustration must include under the heading "Risks - important things you must consider" statements and warnings on the following:(1) a brief statement of the specific circumstances in which the mortgage lender is able to repossess the property;(2) a statement of how the mortgage lender will treat any negative equity arising during the life of the lifetime mortgage7 and at the time the amount borrowed under the lifetime mortgage7 is due to be repaid in full;77(3) a statement
The heading of the column on the right-hand side of Section 8 of the illustration must state the frequency with which payments must be made by the customer. (For example, if payments are to be made on a monthly basis, the heading for this section must be "What you will owe and when" and the column must be headed "Monthly payments".1
MCOB 9.4.39 R(3) applies to each interest rate charged on the lifetime mortgage7 covered by the illustration. This means that it applies to different interest rates charged at different times, for example, where the interest rate changes at the end of any initial discounted, fixed or other special interest rate period.7
An example of how the information required by MCOB 9.4.39 R(3) and MCOB 9.4.43 R may be presented when there is an example term of fifteen years, and an initial fixed interest rate for a period of 22 months followed by the mortgage lender's standard variable interest rate for a period of 158 months, is as follows:"22 payments at a fixed rate of [...]%followed by158 payments at a variable rate, currently [...]%.".
Where the loan under the lifetime mortgage7 is divided into more than one part (for example, where part of the loan is on a fixed interest rate and part on a discounted variable interest rate) and the firm displays the initial cost of all parts, and the total cost, in a tabular format in the illustration, MCOB 9.4.39 R(3) and MCOB 9.4.43 R do not apply; instead:7(1) each part must be numbered for ease of reference in the illustration;(2) the loan amounts must be totalled;(3) the
The table showing the projection in the section headed "Projection of roll-up of interest" should show annual details in columns under the following headings:(1) "Year": this should list the years as 1,2,3... etc. The start date for year one must be an assumed date of completion of thelifetime mortgage.7 The table must show each year of the term estimated in accordance with MCOB 9.4.10 R (or if required, MCOB 9.4.12 R).7(2) "Balance at start of year": this must show the estimated
(1) Except where (3) applies, where the customer is required to make payments to the mortgage lender on thelifetime mortgage,7 and the customer's payments can vary with changes in interest rates at any time during the life of thelifetime mortgage,7 Section 9: "Will the interest rate change?" must also contain the following text:"The [frequency of payments from MCOB 9.4.37 R] payments shown in this illustration could be considerably different if interest rates change. For example,
The amount by which the customer's payments would increase in accordance with MCOB 9.4.54 R(1) must be calculated as follows:(1) the firm must use the total amount borrowed, or assume that all payments due on the lifetime mortgage7 have actually been paid, all additional fees and payments due have been paid, and no underpayments or overpayments have been made; and7(2) the interest rate from which the increase is calculated must be the variable interest rate charged on the lifetime
Section 10: "How the value of your home could change" must contain the following text in addition to the text in accordance with MCOB 9.4.62 R or MCOB 9.4.63 R:"Based on the estimated value of your home now of [insert amount from MCOB 9.4.6 R(3)] this example shows what the value of your home would be after [insert term from MCOB 9.4.10 R or MCOB 9.4.12 R] years if the value went up by 1% each year or went down by 1% each year. Remember also that the mortgage may run for more
An example of a fee that would be included in Section 11 would be an administrative charge to redeem thelifetime mortgage.7 An example of a fee that would not be included would be a fee payable by the customer to insure their property elsewhere (however this would need to be stated in the separate "Insurance" section as required by MCOB 9.4.72 R). Where fees are payable only on early repayment of thelifetime mortgage.7 they should not be stated here (however these fees would need
The following information must be provided for each fee included in this section of the illustration in accordance with MCOB 9.4.65 R(1):(1) a description of the fee;(2) the amount payable by the customer recorded in a column headed "Fee amount" on the right-hand side of this section;(3) for fees included under the sub-heading "Other fees", to whom the fee is payable;(4) when the fee is payable;(5) whether or not the fee is refundable, and if so, the extent to which it is refundable;(6)
(1) If a higher lending charge is payable by the customer, the following text must be used to describe such a charge for the purposes of MCOB 9.4.68 R:"A higher lending charge is payable because you are borrowing [insert the ratio of the mortgage amount (from MCOB 9.4.13 R) to the property's price or value (from MCOB 9.4.6 R(3))] of the property's [estimated] [price/value]."(2) If the customer has asked for any fees to be added to the loan, this must be stated alongside each fee.2(3)
(1) Under the section heading "Insurance" the illustration must include details of:(a) insurance which is a tied product and(b) insurance which is required as a condition of the lifetime mortgage7 which is not a tied product7(2) Under this section heading a firm may also provide details of insurance which is optional for the customer to take out.(3) It must be clear to the customer which products he is required to purchase under which circumstances (for example, where both a tied
Under the sub-heading 'Insurance you must take out through [insert name of mortgage lender or where relevant the name of the mortgage intermediary, or both]' the following information must be included if the lifetime mortgage7 requires the customer to take out insurance that is a tied product either through the mortgage lender or where relevant the mortgage intermediary:7(1) details of which insurance is a tied product;(2) for how long the customer is obliged to purchase the insurance;(3)
Under the sub-heading "Insurance you must take out as a condition of this mortgage but that you do not have to take out through [insert name of mortgage lender or where relevant the name of the mortgage intermediary, or both]", the illustration should not include any insurance policy that may be taken out by a mortgage lender itself to protect its own interests rather than the customer's interests, for example, because of the ratio of the loan amount to the property value.1
If the cost of any insurance that the mortgage lender might take out to protect its own interests because of the ratio of the loan to the property value is passed on to the customer, it will be shown elsewhere in the illustration, for example as a higher lending charge or in the interest rate charged.
Under the heading "What happens if you do not want this mortgage any more?", the illustration must include the following information on the lifetime mortgage:77(1) under the sub-heading "Early repayment charges":(a) an explanation of whether early repayment charges are payable;(b) an explanation of when early repayment charges are payable;(c) an explanation of any other fees that are payable if the lifetime mortgage7 is repaid early, and the current level of these fees;7(d) a
(1) Under the sub-heading 'Overpayments', the illustration must include details of any restrictions on lump sum and regular overpayments (if payments are required) on thelifetime mortgage,7 together with a statement as to whether or not the amount on which the interest is recalculated is reduced immediately on receipt of any lump sum or regular overpayment.7(2) Where such recalculation does not take place immediately (for example, if an annual rest method is used), this statement
Under the sub-heading "Linked current account" the illustration must include the following information:(1) whether a linked current account is a compulsory or optional product (if the current account is a compulsory product this must also be stated in Section 5 of the illustration in accordance with MCOB 9.4.24 R(7));(2) an explanation of the interest rates that apply under different circumstances to the linked current account, if different from the interest rate charged on the
MCOB 9.4.111 R(3) would require, for example, a reference to the fact that the overall cost takes into account mortgage payment protection insurance where this is required as a condition of the lifetime mortgage7 to which the illustration relates. The requirement to take out such insurance must be stated in Sections 5 and 12 of the illustration in accordance with MCOB 9.4.24 R(7), MCOB 9.4.72 R or MCOB 9.4.76 R.7
If the lifetime mortgage7 is a shared appreciation mortgage, MCOB 9.4 applies to the illustration with the following modifications:7(1) Section 5 "Description of this mortgage" must contain the following additional information and text in this order after the details required by MCOB 9.4.24 R to MCOB 9.4.29 R:(a) "This lifetime mortgage involves [name of mortgage lender] taking a percentage share in any increase in the value of your property [insert details of all occasions when
The requirements at MCOB 9.4.130 R(1) must be immediately followed by the following additional text, prominently displayed:"You will need to pay this share in the value of your home to [name of mortgage lender] [insert time at which share must be paid - for example 'when your lifetime mortgage is repaid']. Think carefully about how this will affect the amount left over for you or your estate."10
If only part of the loan under the lifetime mortgage is of the type described in MCOB 9.4.132AR (for example, if part of the loan is on an interest roll-up basis from the outset, and part is convertible from interest-paying to interest roll-up):(1) the modifications set out in MCOB 9.4.132DR apply only to that part of the loan that is of the type described in MCOB 9.4.132AR; and(2) the projection of roll-up of interest on the part of the loan that is on an interest roll-up basis
12MCOB 9.4 applies to the lifetime mortgageillustration with the following modifications:(1) Section 7 of the illustration (“Risks – important things you must consider”) must also include information about any fees that may be charged, and other adverse consequences (such as a change in interest rate) that may occur, as a result of the customer choosing to convert the mortgage to interest roll-up.(2) Section 8(A) of the illustration should be headed “What you will owe and when
8Under the section heading "Description of this home reversion plan" the illustration must:(1) state the name of the reversion provider providing the home reversion plan to which the illustration relates (a trading name used by the reversion provider may also be stated), and the name, if any, used to market the home reversion plan;(2) include a statement describing the home reversion plan;(3) if the home reversion plan is linked to an investment, and payments required from the
8Under the section heading "Benefits", the illustration must include:(1) a description of the monetary amount(s), and in a box aligned to the right of the document, the monetary amount(s), that the customer will receive as a lump sum and/or as a regular payment;(2) if the home reversion plan is linked to an investment and the payments required from the customer on the home reversion plan will be deducted from the income from the investment, the monetary amount of the net income
8Examples that may be appropriate to describe what the customer will receive are:(1) "Subject to the independent valuation, this home reversion plan will provide you with a lump sum of £[x] [or [state number of instalments] lump sums of £[x]].";(2) "The amount you are releasing will automatically be used to purchase a [name of linked investment product] from [name of provider]. The amount is £[x]."; and(3) "Subject to the independent valuation, this home reversion plan will provide
8An example that may be appropriate to explain how the amount the customer will receive was calculated is: "How we calculate this sum: Your property is worth about £[x]. Taking the information in Section 4 above into consideration, this plan will pay you [x] % [the amount, as a percentage, that the reversion provider will pay for the property] of the full market value of any portion of the property you decide to sell. For a lump sum of about £ [x] [insert the amount that the customer
8The illustration must include under the heading "Risks - important things you must consider" brief statements and warnings on all material risks involving a home reversion plan, including:(1) prominently at the beginning of the section: "A home reversion is a complex property transaction. You should seek legal advice to ensure that you fully understand all of the implications for you and your home and for anyone who might otherwise inherit the property.";(2) the effect of the
8The heading of the right-hand column of Section 8 of the illustration must state the frequency with which payments must be made by the customer. (For example, if payments are to be made on a monthly basis, the heading for this section must be "What you will have to pay and when" and the column must be headed "Monthly payments").
(1) 8Under the section heading "Insurance" the illustration must include details of:(a) insurance which is a tied product; and(b) insurance which is required as a condition of the home reversion plan which is not a tied product.(2) Under this section heading a firm may also provide details of insurance which is optional for the customer to take out.(3) It must be clear to the customer which products he is required to purchase under which circumstances (for example, where both
8The following information must be included if the home reversion plan requires the customer to take out insurance that is a tied product either through the reversion provider or the reversion intermediary:(1) details of which insurance is a tied product;(2) the name of the firm imposing the requirement for the insurance;(3) for how long the customer is obliged to purchase the insurance;(4) an accurate quotation or a reasonable estimate of any payments the customer needs to make
An illustration provided to a customer must:(1) contain the material set out in MCOB 5 Annex 1 in the order and using the numbered section headings, sub-headings and prescribed text in MCOB 5 Annex 1, except where provided for in MCOB 5.6;(2) follow the layout of the template in MCOB 5 Annex 1 with:(a) prominent use of the Key facts3 logo followed by the text 'about this mortgage';33(b) each section clearly separated;(c) all the amounts to be paid in Sections 5, 6, 8 and 9 in
(1) Further requirements regarding the use of the Key facts logo and the location of specimens are set out in GEN 5.1 and GEN 5 Annex 1 G.33(2) MCOB 5.6.2 R(3) does not prevent the use of different fonts and typefaces for headings and risk warnings. Its purpose is to prevent particular sections of the illustration from being made less prominent than other sections through the inconsistent use of font sizes and typefaces.(3) The illustration can contain the mortgage lender's or
As a minimum the illustration must be personalised to reflect the following requirements of the customer:(1) the specific regulated mortgage contract in which the customer is interested;(2) the amount of the loan required;(3) the price or value of the property on which the regulated mortgage contract would be secured (estimated where necessary);(4) the term of the regulated mortgage contract. If 12the customer is unable to suggest a date at which they expect to repay the loan,
In relation to MCOB 5.6.6 R(3), for the firm to comply with the principle of 'fair, clear11 and not misleading' in MCOB 3A.2.1R(1)11, an estimated valuation, where the estimated valuation is not that provided by the customer, must be a reasonable assessment based on all the facts available at the time. For example, an overstated valuation could enable a more attractive regulated mortgage contract to be illustrated on the basis of a lower ratio of the loan amount to the property
The amount referred to in MCOB 5.6.6 R(2) is:(1) in cases where on the basis of the information obtained from the customer before providing the illustration it is clear that the customer would not be eligible to borrow the amount he requested, an estimate of the amount that the customer could borrow based on the information obtained from the customer; or(2) where the regulated mortgage contract is a revolving credit agreement such as a secured overdraft or mortgage credit card:4(a)
(1) MCOB 5.6.13 R applies where, for example, the illustration covers a regulated mortgage contract that is:(a) divided so that a certain amount of the loan is payable on a fixed interest rate, and a certain amount on a discounted interest rate; or(b) a combination of a repayment mortgage and an interest-only mortgage and the loan is subdivided into different types of interest rate and/or different rates of interest.(2) MCOB 5.6.13 R does not apply where an illustration covers
At the head of the illustration, the following information must be included:(1) the customer's name;(2) the date of issue of the illustration;(3) details of how long the illustration is valid and whether there is any date by which the regulated mortgage contract covered by the illustration needs to commence (for example, where a fixed interest rate is only available if the regulated mortgage contract commences before a certain date); and(4) the prescribed text at the head of the
Under the section heading 'Description of this mortgage' the illustration must:(1) state the name of the mortgage lender providing the regulated mortgage contract to which the illustration relates (a trading name used by the mortgage lender may also be stated in accordance with MCOB 5.6.2 R(6)), and the name, if any, used to market the regulated mortgage contract;(2) (a) provide a description of the interest rate type and rate of interest that applies in accordance with the format
Description of interest rate types and rates of interest. This table belongs to MCOB 5.6.26R:
Description of the interest rate |
Amount payable in each instalment |
Lender's base mortgage rate - must be described as the [Lender]'s standard variable rate, currently X%, [where applicable insert the date at which the interest rate ends or period for which the interest rate applies]. |
Amount based on X%. |
Fixed rate - must be described as a fixed rate of X% [where applicable insert the date at which the interest rate ends or the period for which the interest rate applies]. |
Amount based on the fixed rate of X%. |
Discounted rate - must be described as a variable rate, currently X%, with a discount of Y% [where applicable insert the date at which the discount ends or the period for which the discount applies], giving a current rate payable of Z%. |
Amount based on Z%. |
Capped rate - must be described as a variable rate, currently X%, which will not go above a ceiling of Y% [where applicable insert the date at which the capped interest rate ends or the period for which the capped interest rate applies]. |
Amount based on the current interest rate payable (X%). |
Capped and collared - must be described as a variable rate, currently X%, which will not go below a floor of Y%, or above a ceiling of Z% [where applicable insert the date at which the capped and collared interest rate ends or the period for which the capped and collared interest rate applies]. |
Amount based on the current interest rate payable (X%). |
Tracker rate - must be described as a variable rate which is [X% above/X% below/the same as] [insert interest rate tracked, currently Z%,] [where applicable insert the date at which the rate ends or the period for which the interest rate applies], to give a current rate payable of Y%. Details should also be provided of how soon after an interest rate change the mortgage interest rate is adjusted. |
Amount based on Y%. |
Deferred rate - must be described as a variable rate, currently X%, where Y% is not paid now but is added to your mortgage [where applicable insert the date at which the deferred interest rate ends or the period for which the deferred interest rate applies], to give a current rate payable of Z%. |
Amount based on Z%. |
Stepped rate where different interest rates apply over different time periods (for example, fixed interest rate in year 1 changes in year 2). Each element should be dealt with individually as above. |
Amount for each of the 'steps'. |
Combinations of the above must be treated in the same way as the descriptions above, (for example, if a discounted interest rate has a 'floor' then it must be described as such). |
Follow the above treatment depending on the combination. |
Where the loan under the regulated mortgage contract is divided into more than one part (for example where part of the loan is a fixed interest rate and part of the loan is a discounted variable interest rate) and the firm displays this in a tabular format in the illustration:(1) the following text must be used to introduce the table 'As this mortgage is made up of more than one part, these parts are summarised below:';(2) each part must be numbered for ease of reference in the
Under the section heading 'Overall cost of this mortgage' where the regulated mortgage contract has no agreed term for repayment, (and a 12 month term has been assumed), or no regular payment plan, or both (for example, a revolving credit agreement such as a secured overdraft or mortgage credit card or a regulated mortgage contract where all the interest rolls up such as an open-ended bridging loan9):9(1) the following text must be included in the illustration: 'The overall cost
MCOB 5.6.31 R(5) and MCOB 5.6.32 R(5) would require, for example, a reference to the fact that the overall cost takes into account mortgage payment protection insurance where this is required as a condition of the regulated mortgage contract to which the illustration relates. The requirement to take out such insurance must be stated in Sections 4 and 9 of the illustration in accordance with MCOB 5.6.25 R(6), MCOB 5.6.74 R or MCOB 5.6.77 R.
The following text must be included after the text required by MCOB 5.6.31 R or MCOB 5.6.32 R with the relevant cost measures shown in the right-hand column of Section 5 in accordance with the layout shown in MCOB 5 Annex 1:(1) 'The total amount you must pay back, including the amount borrowed is £[insert total amount payable]';(2) 'This means you pay back £[insert the total amount payable] divided by the amount on which the illustration is based from MCOB 5.6.6 R(2) plus all
(1) The APR and the total amount payable in MCOB 5.6.34 R must be calculated on the basis of information obtained from the customer under MCOB 5.6.6 R.(2) Where there is a charge to be included in the APR and total amount payable and the precise amount of that charge is not known at the time that the illustration is provided, MCOB 10.3 (Formula for calculating the APR) sets out a number of relevant assumptions to be used. If the method for including the charge is not addressed
The heading for Section 6 of the illustration and the heading of the column on the right-hand side of this section must state the frequency with which payments must be made by the customer. (For example, if payments are to be made on a monthly basis, the heading for this section must be 'What you will need to pay each month' and the column must be headed 'Monthly payments'.)
MCOB 5.6.42 R(3) applies to each interest rate charged on the regulated mortgage contract covered by the illustration. This means that it applies to different interest rates charged at different times, for example, where the interest rate changes at the end of any initial discounted, fixed or other special interest rate period.
An example of how the information required by MCOB 5.6.42 R(3) and MCOB 5.6.46 R may be presented when there is an initial fixed interest rate for a period of 22 months followed by the mortgage lender's standard variable interest rate for a period of 278 months is as follows:'22 payments at a fixed rate of [...]%followed by278 payments at a variable rate, currently [...]%'.
Where all or part of the regulated mortgage contract to which the illustration relates is an interest-only mortgage:(1) the illustration must include the sub-heading 'Cost of repaying the capital' with the following text under it:'You will still owe [insert amount of loan on an interest-only basis] at the end of the mortgage term. You will need to make separate arrangements to repay this. When comparing the payments on this mortgage with a repayment mortgage, remember to add any
An example of how the information required by MCOB 5.6.52 R (1), MCOB 5.6.52 R (3) and MCOB 5.6.52 R (5) may be presented is as follows:
Cost of repaying the capitalYou will still owe £Z at the end of the mortgage term. You will need to make separate arrangements to repay this. When comparing the payments on this mortgage with a repayment mortgage, remember to add any money that you may need to pay into a separate savings plan to build up a lump sum to repay this amount. |
|
Savings plan that you do not have to take out through [insert name of mortgage lender or mortgage intermediary] |
Monthly payments |
XYZ savings plan (see separate product disclosure document) |
£C |
What you will need to pay each month including the cost of a savings plan to repay the capital |
|
36 payments at a fixed rate currently x% followed by: |
£(A+C) |
264 payments at a variable rate currently y%. |
£(B+C) |
Where the loan under the regulated mortgage contract is divided into more than one part (for example, where part of the loan is on a fixed interest rate and part on a discounted variable interest rate) and the firm displays the initial cost of all parts, and the total cost, in a tabular format in the illustration, MCOB 5.6.42 R(3) and MCOB 5.6.46 R do not apply; instead:(1) each part must be numbered for ease of reference in the illustration;(2) the loan amounts must be totalled;(3)
Under the section heading 'Are you comfortable with the risks?':(1) under the sub-heading 'What if interest rates go up?' the illustration must include the following:(a) if the interest rate is fixed throughout the term of the regulated mortgage contract, an explanation that the payments will not vary because the interest rate is fixed;(b) if the interest rate is fixed for part of the term of the regulated mortgage contract, an explanation of when or how increases in the interest
The amount by which the customer's payments would increase in accordance with MCOB 5.6.59 R(1)(g) and (h) must be calculated as follows:(1) the firm must use the total amount borrowed, or assume that all payments due on the regulated mortgage contract have actually been paid, all additional fees and payments due have been paid, and no underpayments or overpayments have been made;(2) where all or part of the regulated mortgage contract is a repayment mortgage, the calculation must
An example of a fee that would normally be included in Section 8 would be a fee to re-inspect a property after completion of works if it is known that this fee will be charged at the time the illustration is produced. An example of a fee that would not be included would be a fee payable by the customer to insure their property elsewhere (however this would need to be stated in Section 9 of the illustration 'Insurance', as required by MCOB 5.6.77 R(2)). Fees payable upon repayment
The following information must be provided for each fee included in this section of the illustration in accordance with MCOB 5.6.66 R(1):(1) a description of the fee;(2) the amount payable by the customer recorded in a column headed 'Fee amount' on the right-hand side of this section;(3) for fees included under the sub-heading 'Other fees', to whom the fee is payable;(4) when the fee is payable;(5) whether or not the fee is refundable, and if so, the extent to which it is refundable;
(1) If a higher lending charge is payable by the customer, the following text must be used to describe such a charge for the purposes of MCOB 5.6.69 R:'A higher lending charge is payable because you are borrowing [insert the ratio of the mortgage amount (from MCOB 5.6.6 R(2)) to the property's price or value (from MCOB 5.6.6 R(3))] of the property's [estimated] [price/value].'(2) If the customer has asked for any fees to be added to the loan, this must be stated alongside each
(1) Under the section heading 'Insurance' the illustration must include details of:(a) insurance which is a tied product; and(b) insurance which is required as a condition of the regulated mortgage contract which is not a tied product.(2) A firm may also provide details of insurance which it is optional for the customer to take out under this section heading.(3) It must be clear to the customer which products he is required to purchase under which circumstances (for example, where
Under the sub-heading 'Insurance you must take out through [insert name of mortgage lender or where relevant the name of the mortgage intermediary, or both]' the following information must be included if the regulated mortgage contract requires the customer to take out insurance that is a tied product either through the mortgage lender or where relevant the mortgage intermediary:(1) details of which insurance is a tied product;(2) for how long the customer is obliged to purchase
Under the sub-heading 'Insurance you must take out as a condition of this mortgage but that you do not have to take out through [insert name of mortgage lender or where relevant the name of the mortgage intermediary, or both]' the illustration should not include any insurance policy that may be taken out by a mortgage lender itself to protect its own interests rather than the customer's interests, for example, because of the ratio of the loan amount to the property value.1
If the cost of any insurance that the mortgage lender might take out to protect its own interests, because of the ratio of the loan amount to the property value, is passed on to the customer, it will be shown elsewhere in the illustration, for example, as a higher lending charge or in the interest rate charged.
(1) Under the section heading 'What happens if you want to make overpayments?', the illustration must include details of any restrictions on lump sum and regular overpayments on the regulated mortgage contract, together with a statement as to whether or not the amount on which the interest charged is recalculated is reduced immediately on receipt of any lump sum or regular overpayment.(2) Where such recalculation does not take place immediately (for example, if an annual rest
Under the sub-heading 'Additional borrowing available without further approval', the illustration must provide details of circumstances in which there are any linked borrowing facilities that would allow the customer to increase the amount of the loan on which the illustration is based without any further approval from the mortgage lender (for example, if there are additional drawdown facilities).
(1) Under the sub-heading 'Linked current account', the illustration must include the following information:(a) whether a linked current account is a compulsory or optional product (if the current account is a compulsory product this must also be stated in Section 4 of the illustration in accordance with MCOB 5.6.25 R(6));(b) an explanation of the interest rates that apply under different circumstances to the linked current account, if different from the interest rate charged
If an example is included in the illustration in accordance with MCOB 5.6.109 R(2) or MCOB 5.6.110 R(2), it must be based on information obtained from the customer and the amounts that are intended to be paid into the current or savings account on a regular basis; the amounts that it is intended are saved; and the actual or likely expenditure profile. The amounts involved and the expenditure profile should not be standard assumptions made by the firm, but should be those of the
(1) An amortisation table may be added to the end of the illustration after the information required by MCOB 5.6.124 R if the mortgage lender or mortgage intermediary wishes. A firm may find that this is particularly appropriate to illustrate certain types of regulated mortgage contract, for example, a regulated mortgage contract with more than one part.(2) The purpose of (1) is to permit a firm to add an amortisation table in accordance with the European Commission's 'Recommendation
If the interest rate charged on the regulated mortgage contract is deferred, MCOB 5.6 applies with the following additions:(1) A section headed: 'Effect of deferring interest on the amount you owe' must be included in the illustration after Section 6.(2) This section must be numbered 6a so that the numbering follows on consecutively from the preceding section unless MCOB 5.6.55 R applies in which case it should be numbered 6b.(3) Under the section heading the following text must
The heading for Section 6 of the illustration and the heading of the column on the right-hand side of this section must state the frequency with which payments must be made by the customer. (For example, if payments were to be made on a monthly basis, the heading for this section would be 'What you will need to pay each month' and the column would be headed 'Monthly payments'). Where no regular payments are required on the regulated mortgage contract, for example where all interest
All the payments in Section 6 of the illustration must be calculated based on the frequency used for the purposes of the headings in MCOB 5.6.40 R and must be shown in the column on the right-hand side of this section. If no payments are required, for example on a bridging loan9 or secured overdraft, then this column should be marked on the illustration as nil.9
Section 6 of the illustration must contain the following information:(1) the loan amount on which the illustration is based. Where fees are being added to the loan then this figure should include all fees, charges and insurance premiums that have been added to the loan in accordance with MCOB 5.6.18 R(2) and MCOB 5.6.18 R(3), and the following text must follow the loan amount:'and include[s] the fees [and insurance premiums] that are shown in Section 8 [and Section 9] as being
Under the section heading 'Are you comfortable with the risks?':(1) under the sub-heading 'What if interest rates go up?' the illustration must include the following:(a) if the interest rate is fixed throughout the term of the regulated mortgage contract, an explanation that the interest rate will not vary because the interest rate is fixed;(b) if the interest rate is fixed for part of the term of the regulated mortgage contract, an explanation of when or how increases in the
The amount by which the total amount payable would increase in accordance with MCOB 5.6.140 R(1)(e) must be calculated as follows:(1) unless the total amount borrowed is used, it must be assumed that all payments due on the regulated mortgage contract have actually been paid, all additional fees and payments due have been paid, and no under or overpayments have been made;(2) unless the total amount borrowed is used, the calculation must be based on the amount of the loan outstanding
12If the complainant's endowment mortgage outgoings exceed the equivalent cost for the repayment method, the complainant should be compensated for the higher payments in addition to any loss on the surrender value and capital repaid comparison. This means, for example, that if the endowment arrangement has been more expensive, this may result in compensatable loss even though the capital repayment against surrender comparison may be favourable to the endowment.
12It would not be unreasonable if a firm providing redress in these circumstances were to frame its offer of redress on the assumption that the complainant will agree to surrender the policy. However, firms should bear in mind that there may be circumstances where it is appropriate for the complainant to retain the policy, for example, where it is being retained as a savings vehicle.
12The standard approach to redress can be illustrated by the following examples, which show how redress would be calculated in certain hypothetical but typical scenarios. (Because the examples are illustrative, round numbers have been used for 'established facts' in each example. The payments should be taken as being made monthly: firms should not approximate by assuming that payments are made annually. If the complainant has benefited from MIRAS, the calculations should allow
12Table of examples of typical redress calculations
Example 1 |
Capital shortfall and higher endowment outgoings |
Example 2 |
Capital shortfall partially offset by lower endowment mortgage outgoings |
Example 3 |
Capital shortfall more than offset by lower endowment mortgage outgoings |
Example 4 |
Capital surplus more than offset by higher endowment mortgage outgoings |
Example 5 |
Capital surplus partially offset by higher endowment mortgage outgoings |
Example 6 |
Capital surplus and lower endowment mortgage outgoings |
Example 7 |
Low start endowment mortgage |
Example 1 |
|
Capital shortfall and higher endowment mortgage outgoings |
|
Background |
|
Capital sum of £50,000 |
|
25 year endowment policy |
|
Duration to date: 5 years |
|
Established facts |
|
Endowment surrender value: |
£3,200 |
Capital repaid under equivalent repayment mortgage: |
£4,200 |
Surrender value less capital repaid: |
(£1,000) |
Cost of converting from endowment mortgage to repayment mortgage: |
(£200) |
Total outgoings to date |
|
Equivalent repayment mortgage (capital + interest + DTA life cover): |
£21,950 |
Endowment mortgage (endowment premium + interest): |
£22,250 |
Difference in outgoings (repayment - endowment): |
(£300) |
Basis of compensation |
|
In this example, the complainant has suffered loss because the surrender value of the endowment is less than the capital repaid and also because of the higher total outgoings to date of the endowment mortgage relative to the repayment mortgage. The two losses and the conversion cost are therefore added together in order to calculate the redress. |
|
Redress |
|
Loss from surrender value less capital repaid: |
(£1,000) |
Loss from total extra outgoings under endowment mortgage: |
(£300) |
Cost of converting to repayment mortgage: |
(£200) |
Total loss: |
(£1,500) |
Therefore total redress is: |
£1,500 |
Example 2 |
|
Capital shortfall partially offset by lower endowment mortgage outgoings |
|
Background |
|
Capital sum of £50,000 |
|
25 year endowment policy |
|
Duration to date: 5 years |
|
Established facts |
|
Endowment surrender value: |
£2,500 |
Capital repaid under equivalent repayment mortgage |
£4,200 |
Surrender value less capital repaid under equivalent repayment mortgage: |
(£1,700) |
Cost of converting from endowment mortgage to repayment mortgage |
(£300) |
Total outgoings to date: |
|
Repayment mortgage (capital + interest + DTA life cover): |
£21,950 |
Endowment mortgage (endowment premium + interest): |
£21,350 |
Difference in outgoings (repayment - endowment): |
£600 |
Basis of Compensation |
|
In this example, the complainant has suffered loss because the surrender value of the endowment is less than the capital repaid but has gained form the lower outgoings of the endowment mortgage to date. In calculating the redress the gain may be offset against the loss unless the complainant's particular circumstances are such that it would be unreasonable to take account of the gain. |
|
Redress if it is not unreasonable to take account of the whole of the gain from lower outgoings |
|
Loss from surrender value less capital repaid: |
(£1,700) |
Gain from total lower outgoings under endowment mortgage: |
£600 |
Cost of converting to repayment mortgage: |
(£300) |
Net loss: |
(£1,400) |
Therefore total redress is: |
£1,400 |
Redress if it is unreasonable to take account of gain from lower outgoings |
|
Loss from surrender value less capital repaid: |
(£1,700) |
Gain from total lower outgoings under endowment mortgage: |
Ignored* |
Cost of converting to repayment mortgage: |
(£300) |
Net loss taken into account: |
(£2,000) |
Therefore total redress is: |
£2,000 |
* In this example, and also in Examples 3, 7, 8 and 9, the complainant's circumstances are assumed to be such as to make it unreasonable to take account of any of the gain from lower outgoings. |
|
Example 3 |
|
Capital shortfall more than offset by lower endowment mortgage outgoings |
|
Background |
|
Capital sum of £50,000 |
|
25 year endowment policy |
|
Duration to date: 8 years |
|
Established facts |
|
Endowment surrender value: |
£7,300 |
Capital repaid under equivalent repayment mortgage: |
£7,600 |
Surrender value less capital repaid: |
(£300) |
Cost of converting from endowment mortgage to repayment mortgage: |
(£200) |
Total outgoings to date: |
|
Repayment mortgage (capital + interest + DTA life cover): |
£34,510 |
Endowment mortgage (endowment premium + interest): |
£33,990 |
Difference in outgoings (repayment - endowment): |
£520 |
Basis of Compensation |
|
In this example, the complainant has suffered loss because the surrender value of the endowment is less than the capital repaid but has gained from the lower total outgoings of the endowment mortgage. In calculating redress the gain may be offset against the loss unless the complainant's particular circumstances are such that it would be unreasonable to take account of the gain. |
|
Redress if it is not unreasonable to take account of the whole of the gain from lower outgoings |
|
Loss from surrender value less capital repaid: |
(£300) |
Gain from total lower outgoings under endowment mortgage: |
£520 |
Cost of converting to repayment mortgage: |
(£200) |
Net gain: |
£20 |
Therefore, there has been no loss and no redress is payable. |
|
Redress if it is unreasonable to take account of gain from lower outgoings |
|
Loss from surrender value less capital repaid: |
(£300) |
Gain from total lower outgoings under endowment mortgage: |
Ignored |
Cost of converting to repayment mortgage: |
(£200) |
Net loss taken into account: |
(£500) |
Therefore total redress is: |
£500 |
Example 4 |
|
Capital surplus more than offset by higher endowment mortgage outgoings |
|
Background |
|
Capital sum of £50,000 |
|
25 year endowment policy |
|
Duration to date: 8 years |
|
Established facts |
|
Endowment surrender value: |
£7,800 |
Capital repaid under equivalent repayment mortgage: |
£7,600 |
Surrender value less capital repaid: |
£200 |
Cost of converting from endowment mortgage to repayment mortgage: |
(£250) |
Total outgoings to date: |
|
Repayment mortgage (capital + interest + DTA life cover): |
£34,510 |
Endowment mortgage (endowment premium + interest): |
£34,950 |
Difference in outgoings (repayment - endowment): |
(£440) |
Basis of Compensation |
|
In this example, the complainant has suffered loss because of the higher total outgoings to date of the endowment mortgage but has gained because the surrender value of the endowment is greater than the capital repaid. Since the sum of the loss and the conversion cost is greater than the gain, the redress is calculated as the difference between the two. |
|
Redress |
|
Gain from surrender value less capital repaid: |
£200 |
Loss from total extra outgoings under endowment mortgage: |
(£440) |
Cost of converting to repayment mortgage: |
(£250) |
Net loss: |
(£490) |
Therefore total redress is: |
£490 |
Example 5 |
|
Capital surplus partially offset by higher endowment mortgage outgoings |
|
Background |
|
Capital sum of £50,000 |
|
25 year endowment policy |
|
Duration to date: 10 years |
|
Established facts |
|
Endowment surrender value: |
£11,800 |
Capital repaid under equivalent repayment mortgage |
£9,700 |
Surrender value less capital repaid: |
£2,100 |
Cost of converting from endowment mortgage to repayment mortgage: |
(£300) |
Total outgoings to date: |
|
Repayment mortgage (capital + interest + DTA life cover): |
£46,800 |
Endowment mortgage (endowment premium + interest): |
£47,500 |
Difference in outgoings (repayment - endowment): |
(£700) |
Basis of Compensation |
|
In this example, the complainant has suffered loss because of the higher total outgoings to date of the endowment mortgage relative to the repayment mortgage. However the sum of this and the conversion cost is less than the complainant's gain from the difference between the surrender value of the endowment and the capital repaid. Thus no redress is payable. |
|
Redress |
|
Gain from surrender value less capital repaid: |
£2,100 |
Loss from total extra outgoings under endowment mortgage: |
(£700) |
Cost of converting to repayment mortgage: |
(£300) |
Net gain: |
£1,100 |
Therefore, there has been no loss and no redress is payable. |
|
Example 6 |
|
Capital surplus and lower endowment mortgage outgoings |
|
Background |
|
Capital sum of £50,000 |
|
25 year endowment policy |
|
Duration to date: 10 years |
|
Established facts |
|
Endowment surrender value: |
£10,100 |
Capital repaid under equivalent repayment mortgage |
£9,700 |
Surrender value less capital repaid: |
£400 |
Cost of converting from endowment mortgage to repayment mortgage: |
(£200) |
Total outgoings to date: |
|
Repayment mortgage (capital + interest + DTA life cover): |
£46,800 |
Endowment mortgage (endowment premium + interest): |
£46,300 |
Difference in outgoings (repayment - endowment): |
£500 |
Basis of Compensation |
|
In this example, the complainant has gained both because the surrender value of the endowment is greater than the capital repaid and because of the lower total outgoings of the endowment mortgage. These gains are larger than the cost of converting to a repayment mortgage. Thus no further action is necessary. |
|
Redress |
|
As there has been no loss, no redress is payable. |
|
Example 7 |
|
Low start endowment mortgage |
|
Background |
|
Capital sum of £50,000 |
|
25 year endowment policy |
|
Duration to date: 10 years |
|
Endowment premium per month: starting at £35 in first year, increasing by 20% simple on each policy anniversary, reaching £70 after five years and then remaining at that level. |
|
Established facts: |
|
Endowment surrender value: |
£8,200 |
Capital repaid under equivalent repayment mortgage: |
£9,700 |
Surrender value less capital repaid: |
(£1,500) |
Cost of converting from endowment mortgage to repayment mortgage: |
(£250) |
Total outgoings to date |
|
Repayment mortgage (capital + interest + DTA life cover): |
£46,800 |
Endowment mortgage (endowment premium + interest): |
£45,640 |
Difference in outgoings (repayment minus endowment): |
£1,160 |
Of this difference in outgoings, £800 arose in the five year period when the complainant was paying a low endowment premium. |
|
Basis of compensation |
|
In this example, the complainant has suffered loss because the surrender value of the endowment is less than the capital repaid but has gained from the lower total outgoings of the endowment mortgage. As in Example 3, in calculating redress the whole of the gain should be offset against the loss unless the complainant's particular circumstances are such that it would be unreasonable to do so. However, unlike Example 3, in a low start endowment mortgage the complainant may have chosen to pay a lower than usual premium in the early years (this would need to be established on the facts of the case). Where it has been established that the complainant chose to make lower payments, even if it is unreasonable to take account of the whole of the gain from total outgoings, the gain from paying a lower premium during the low start period is normally taken into account. In such cases the redress is calculated as the capital loss plus the conversion cost minus the total amount by which repayment mortgage outgoings would have exceeded the actual low start endowment mortgage outgoings during the five year low start period. |
|
Redress if it is not unreasonable to take account of the whole of the gain from lower outgoings |
|
Loss from surrender value less capital repaid: |
(£1,500) |
Gain from total lower outgoings under endowment mortgage: |
£1,160 |
Cost of converting to repayment mortgage: |
(£250) |
Net loss: |
(£590) |
Therefore total redress is: |
£590 |
Redress if it is unreasonable to take account of gain from lower outgoings |
|
Loss from surrender value less capital repaid: |
(£1,500) |
Gain from total lower outgoings during low start period of endowment mortgage: |
£800 |
Cost of converting to repayment mortgage: |
(£250) |
Net loss taken into account: |
(£950) |
Therefore total redress is: |
£950 |
An example of when the FCA may approve an individual on a time-limited basis is where, following a sudden or unexpected departure:(1) a firm needs to fill an FCA-designated senior management function vacancy immediately; but(2) it is likely to take longer than 12 weeks to recruit a permanent replacement; and(3) there is an individual at the firm not currently approved to perform the relevant FCA-designated senior management function whom the firm and the FCA think capable of fulfilling
(1) An example of how the FCA could deal with a person who is in the running for the long-term appointment is outlined below.(2) The head of compliance resigns unexpectedly from a firm. The firm wishes to appoint one of the deputies. The FCA and the firm believe the deputy to be capable of running the firm's compliance function on a day-to-day ‘business as usual basis’ but the deputy has no experience developing a long-term, firm-wide strategy. The firm estimates that it could
(1) An example of where a qualified approval based on competence may be used is for a candidate with proven management skills who is new to the role or the industry and requires some new technical knowledge for the new role.(2) For instance, a candidate for the role of a senior manager may have a proven track record as a senior manager but may lack detailed knowledge of a specific area, such as money laundering or of the technical details of prudential capital requirements.(3)
(1) An example of SUP 10C.12.28G is where a firm wishes to appoint someone as an executive director who has a number of non-executive directorships.(2) The FCA may be concerned about the potential impact of these other commitments on that individual’s ability to devote sufficient time to the proposed role with the firm.(3) In this situation, it might be appropriate to attach a condition to the individual’s approval requiring that person to resign from some of their non-executive
One example of a role-limited approval relates to the fact that the size, nature, scope and complexity of a firm's activities can change over time. An individual may be fit and proper to perform a senior management function at a certain firm at a point in time but the FCA may wish to re-assess that individual if the firm's situation changes.
An example under SUP 10C.12.35G is as follows.(1) In this example:(a) an individual is to perform an FCA-designated senior management function in an unlisted firm which currently operates only in the UK; and(b) the firm is planning a listing and a string of acquisitions which are projected to treble the size of its balance sheet and give it a global footprint over the next three years, but the candidate has never worked for an institution as large or as complex.(2) In this situation:(a)
(1) Another example of a limited-role approval is where:(a) a candidate is not competent to carry out all the functions that are capable of falling within the FCA-designated senior management function for which approval is sought; but(b) the candidate will be fit to carry out most of them; and(c) the firm has adequate arrangements to deal with the other aspects.(2) In such circumstances, the condition would be that the candidate does not get involved in the aspects of the role
One example of a conditional approval when the candidate is fit and proper and able to do the job is to support supervisory action in relation to the firm. So, if a firm is running a remedial programme, it may be a condition of the candidate's approval that the candidate takes responsibility for aspects of that programme.
Medical schemes under which an employer operates or contributes to a fund, from which the employee has a right to a benefit (for example, a payment) on the occurrence of a specified illness or injury, are likely to be insurance schemes. This will be the case whether the employee makes any contribution to the fund, or the scheme is funded by the employer as an emolument. The scheme would not be insurance, however, if the employer has an absolute discretion whether or not to provide
The disaster recovery provider sets up and maintains a range of IT and related facilities (PABX etc). The disaster recovery contracts so far considered by the FCA give the recipient, subject to certain conditions including an up front payment, priority access to all or a specified part of these facilities if a 'disaster' causes the failure of a similar business system on which the recipient relies. The provider sells access to the same facilities to a number of different recipients,
Under a simple manufacturer's or retailer's warranty the purchase price of the goods includes an amount, in consideration of which the manufacturer undertakes an obligation (the warranty) to respond (without further expense to the purchaser) to specified defects in the product that emerge within a defined time after purchase. When the warranty operates, the manufacturer or retailer provides repairs or replacement products in response to a defined event (the emergence of a latent
A manufacturer or retailer may undertake an obligation to ensure that the customer becomes a party to a separate contract of insurance in respect of the goods sold. This would include, for example, a contract for the sale of a freezer, with a simple warranty in relation to the quality of the freezer, but also providing insurance (underwritten by an insurer and in respect of which the customer is the policyholder) covering loss of frozen food if the freezer fails. The FCA is unlikely
The FCA distinguishes the contract in PERG 6.7.15 G from a contract under which the manufacturer or retailer assumes the obligation to provide the customer with an indemnity against loss or damage if the freezer fails, but takes out insurance to cover the cost of having to provide the indemnity to the customer. The obligation to indemnify is of a different nature from the seller's or supplier's usual obligations as regards the quality of goods or services and is an insurance obligation.
The following are examples of typical warranty schemes operated by motor dealers. Provided that, in each case, the FCA is satisfied that the obligations assumed by the dealer are not significantly more extensive in content, scope or duration that a dealer's usual obligations as to the quality of motor vehicles of that kind, the FCA would not usually classify the contracts embodying these transactions as contracts of insurance.(1) The dealer gives a verbal undertaking to the purchaser
A contract under which a provider agrees to meet a specified obligation on behalf of the recipient (for example an obligation to pay for the re-purchase of shares or to meet a debt) immediately that obligation falls due, subject to later reimbursement by the recipient, would be a contract of insurance if in all other respects it fell within the description of such contract (see PERG 6.3.4 G). This is principally because the provider assumes the risk that an immediate payment will
The6 following factors are to be taken into account when considering whether behaviour6is for legitimate reasons in relation to article 12(1)(a) of the Market Abuse Regulation6, and are indications that it is:(1) if the transaction is pursuant to a prior legal or regulatory obligation owed to a third party;(2) if the transaction is executed in a way which takes into account the need for the market or auction platform5 as a whole to operate fairly and efficiently;(3) the extent
The6following factors are to be taken into account when determining whether a person has engaged in behaviour referred to in Annex IA(a) or (b) of the Market Abuse Regulation, commonly known as an “abusive squeeze”6: (1) the extent to which a person is willing to relax his control or other influence in order to help maintain an orderly market, and the price at which he is willing to do so; for example, behaviour6is less likely to amount to an abusive squeeze if a person is willing
Squeezes occur relatively frequently when the proper interaction of supply and demand leads to market tightness, but this is not of itself likely to be6abusive. In addition, having a significant influence over the supply of, or demand for, or delivery mechanisms for an investment, for example, through ownership, borrowing or reserving the investment in question, is not of itself likely to be6abusive.
The following are examples of behaviour that may amount to manipulating transactions as described in article 12(1)(a)(ii) of the Market Abuse Regulation6: (1) [deleted] 6(2) [deleted] 6(3) a trader holds a short position that will show a profit if a particular
financial instrument6, which is currently a component of an index, falls out of that index. The question of whether the
financial instrument6
will fall out of the index depends on
6The following is an example of an abusive squeeze:A trader with a long position in bond futuresbuys or borrows a large amount of the cheapest to deliver bonds and either refuses to re-lend these bonds or will only lend them to parties he believes will not re-lend to the market. His purpose is to position the price at which those with short positions have to deliver to satisfy their obligations at a materially higher level, making him a profit from his original position.
The FCA will:(1) expect the issuer to demonstrate that it has in place appropriate systems, controls, procedures and policies, including in relation to risk management, underwriting, arrears and valuation; (2) expect the issuer to demonstrate that the cash-flows generated by the assets would be sufficient to meet the payments due in a timely manner including under conditions of economic stress and in the event of the failure of the issuer;(3) take account of any over collateralisation
(1) The credit risk of an asset is the risk of loss if another party fails to perform its obligations or fails to perform them in a timely fashion.(2) Where, for example, the asset pool includes residential mortgages the relevant factors which the FCA may consider include: (a) whether the asset pool contains (or could contain) loans made to individuals who have been made bankrupt or have had court judgments made against them;(b) the extent to which the asset pool contains (or
Counterparty risk is the risk that the counterparty to a transaction could default before the final settlement of the transactions cash flows. The relevant factors the FCA may consider include whether the:(1) counterparty has an appropriate credit rating;(2) counterparty can unilaterally terminate the hedging agreement, and if so under what circumstances;(3) contractual arrangements contain appropriate termination procedures (for example, what provisions apply in the event of
(1) The FCA will assess each risk factor separately and then assess any inter-dependencies and correlations to form a judgment on the quality of the asset pool as a whole. For example, an asset pool which is of high credit quality and so low risk due to a combination of factors such as owner occupation, low income multiples, full valuation methodologies, and a strong payments track record, may permit another factor such as high loan-to-value ratios, that would otherwise be considered
The FCA expects the issuer to demonstrate that there are provisions in the covered bond or programme that adequately deal with:(1) the identification and rectification of any breach of Regulations 17(2) (general requirements on issuer in relation to the asset pool) and 24 (requirements on owner relating to the asset pool) of the RCB Regulations;(2) the appointment of replacements for parties, for example servicers, cash managers or paying agents; and(3) the orderly winding-up
(1) The FCA expects the report from the accountants to address at least the following matters:(a) that the level of over collateralisation meets the limits set out in the covered bond arrangements which are designed to ensure compliance with the requirement that the asset pool is capable of covering claims attaching to the bond in Regulation 17 (requirements on issuer in relation to the asset pool) of the RCB Regulations; and(b) that appropriate due diligence procedures (which
MCOB 7.6.14 R allows the firm to make changes to wording and to add, remove or alter information that would otherwise be misleading for the customer. For example, the firm may add text to let the customer know if conditions applying to the original mortgage do not apply to the additional borrowing, such as 'The early repayment charges applying to your existing loan do not apply to this additional borrowing.'
Before a customer submits an application to a firm to change all or part of a regulated mortgage contract from one interest rate to another (for example, a transfer from a variable rate regulated mortgage contract to a fixed rate regulated mortgage contract, or from one fixed rate regulated mortgage contract to another fixed rate regulated mortgage contract), the firm must provide the customer with either:77(1) an illustration for the whole loan that complies with the requirements
MCOB 7.6.20R (1) and (2) allow7 a firm to make changes to wording and to add, remove or alter information that would otherwise be misleading to the customer. For example, a firm could replace the statement in Section 3 of the illustration, explaining that if information provided by the customer changes, the illustration may be affected, with a statement explaining that the illustration is based on information gathered in the past, which may no longer be accurate.7
MCOB 7.6.25R (1) and (2) allow7 the firm to make changes to wording and to add, remove or alter information that would otherwise be misleading to the customer. For example, a firm may choose not to include a property valuation in the 'What you have told us' section of the illustration if the property value does not have a bearing on the terms of the regulated mortgage contract. 7
If a customer requests, or agrees to, a change to a regulated mortgage contract (other than a change as described in MCOB 7.6.7 R to MCOB 7.6.26 G44) that changes the amount of each payment due, a firm must provide the customer with the following information, in a single communication (subject to MCOB 7.6.28AR (3))4, before the change takes effect:(1) the amount outstanding on the regulated mortgage contract at the date the change is requested;(2) the payment due and the frequency
The following is a non-exhaustive list of examples of conduct that would be in breach of rule 1.(1) Misleading (or attempting to mislead) by act or omission:(a) a client; or(b) the firm for whom the person works (or its auditors); or(c) the FCA or;(d) the PRA.(2) Falsifying documents.(3) Misleading a client about:(a) the risks of an investment;(b) the charges or surrender penalties of products;(c) the likely performance of products by providing inappropriate projections of future
The following is a non-exhaustive list of examples of conduct by any conduct rules staff that would be in breach of rule 2.(1) Failing to inform:(a) a customer; or(b) their firm (or its auditors);of material information in circumstances where the member of conduct rules staff was aware, or ought to have been aware, of such information, and of the fact that they should provide it, including the following:(i) failing to explain the risks of an investment to a customer;(ii) failing
The following is a non-exhaustive list of examples of conduct by a manager that would be in breach of rule 2.(1) Failing to take reasonable steps to ensure that the business of the firm for which the manager has responsibility:(a) is controlled effectively;(b) complies with the relevant requirements and standards of the regulatory system applicable to that area of the business; and(c) is conducted in such a way to ensure that any delegation of responsibilities is to an appropriate
The following is a non-exhaustive list of examples of conduct that would be in breach of rule 3.(1) Failing to report promptly in accordance with their firm's internal procedures (or, if none exist, direct to the regulator concerned), information in response to questions from the FCA, the PRA, or both the PRA and the FCA.(2) Failing without good reason to: (a) inform a regulator of information of which the approved person was aware in response to questions from that regulator;
The following is a non-exhaustive list of examples of conduct that would be in breach of rule 4.(1) Failing to inform a customer of material information in circumstances where they were aware, or ought to have been aware, of such information and of the fact that they should provide it, including the following:(a) failing to explain the risks of an investment to a customer;(b) failing to disclose to a customer details of the charges or surrender penalties of investment products;
3The FCA may publish information about warning notices which fall within section 391(1ZB) of the Act. These are essentially disciplinary warning notices, for example, where the FCA is proposing to censure, fine, or impose a suspension, restriction, condition or limitation on1 a firm or individual. The power to publish information does not apply, for example, to warning notices which only propose to prohibit an individual, withdraw the approval of an individual or cancel the permission
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
3A person to whom the warning notice is given or copied who seeks to demonstrate potential unfairness from publication must provide clear and convincing evidence of how that unfairness may arise and how he could suffer a disproportionate level of damage. For example, this may be the case if publication could materially affect the person’s health, result in bankruptcy or insolvency, a loss of livelihood or a significant loss of income, or prejudice criminal proceedings to which
3As the FCA may only publish information about disciplinary warning notices and not others, it will in many cases not be able to publish details of all of the sanctions it is seeking to impose (for example, the fact that it is proposing to prohibit an individual as well as impose a fine). For this reason, the FCA will not normally publish the nature and level of the proposed disciplinary sanctions.
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
3However, as required by the Act (see paragraph 6.2.1 above), the FCA will not publish information if publication of it would, in its opinion, be unfair to the person in respect of whom the action is taken or prejudicial to the interests of consumers, or detrimental to the stability of the UK financial system. It may make that decision where, for example, publication could damage market confidence or undermine market integrity in a way that could be damaging to the interests of
(1) For example, this chapter does not necessarily require a firm to include in a reference the fact that an ex-employee left while disciplinary proceedings were pending or had started. Including such information is likely to imply that there is cause for concern about the ex-employee but the firm may not have established that the ex-employee was actually responsible for misconduct.(2) However, a firm may include such information in a reference if it wishes to (see SYSC 22.3.
(1) An example of the general duty described in SYSC 22.5.4G is that fairness will normally require a firm to have given an employee an opportunity to comment on information in a reference. The firm might do this through, for example, disciplinary proceedings.(2) Paragraph (1) does not mean that the firm should provide an opportunity to comment on the reference itself, as opposed to the allegations on which it is based. (3) A firm may have given the employee an opportunity to
Table: Examples of factors to take into account when deciding whether old misconduct is sufficiently serious to disclose
Factors to take into account |
Comments |
(A) Whether P has committed a serious breach of individual conduct requirements. |
Individual conduct requirements has the same meaning as in Part Two of SYSC 22 Annex 1R (Template for regulatory references given by SMCR firms2 and disclosure requirements). Factors to take into account in deciding whether the breach is serious include the following. (1) The extent to which the conduct was deliberate or reckless. (2) The extent to which the conduct was dishonest. (3) Whether the breaches are frequent or whether they have continued over a long period of time. The fact that breaches were frequent or repeated may increase the likelihood that they should be disclosed since the breaches may show a pattern of non-compliance. (4) The extent of loss, or risk of loss, caused to existing, past or potential investors, depositors, policyholders or other counterparties or customers. (5) The reasons for the breach. For example, where the breach was caused by lack of experience which has been remedied by training or further experience, it is less likely that the breach will still be relevant. |
(B) Whether the conduct caused B to breach requirements of the regulatory system or P was concerned in a contravention of such a requirement by B and, in each case, whether P’s conduct was itself serious. |
(1) The factors in (A) are relevant to whether P’s conduct was serious. (2) The seriousness of the breach by B is relevant. The factors in (A) are also relevant to this. (3) A breach by B of certain requirements is always likely to be serious under (2). Breach of the threshold conditions is an example. However that does not mean that P’s involvement will automatically be serious. |
(C) Whether P’s conduct involved dishonesty (whether or not also involving a criminal act). |
Dishonesty is an important factor but it is not automatically decisive in every case. For instance, a small one-off case of dishonesty many years ago may not be sufficiently serious to require disclosure. |
(D) Whether the conduct would have resulted in B’s dismissing P, had P still been working for B, based on B's disciplinary policies and the requirements of the law about unfair dismissal. |
|
(E) Whether the conduct was such that, if B was considering P for a role today and became aware of the historical conduct, B would not employ P today notwithstanding the time that has passed. |
|
Note 1: P refers to the employee about whom the reference is being written. |
|
Note 2: B refers to the firm giving the reference. |
|
(1) An example of information that may be relevant under SYSC 22.2.2R(1) to (3) is the fact that the employee has breached a requirement in APER.(2) This means that any firm (not just one that is an SMCR firm2) should consider whether it needs to disclose a breach of individual conduct requirements (as defined in Part Two of SYSC 22 Annex 1R (Template for regulatory references given by SMCR firms and disclosure requirements))2 when giving a reference under this chapter.
SYSC 22.5.13R covers all types of agreements and arrangements. For example:(1) it is not limited to an agreement or arrangement entered into when the employee leaves; (2) it applies however the employment ends (see SYSC 22.5.7G); and(3) it covers a “COT 3” Agreement settled by the Advisory, Conciliation and Arbitration Service (ACAS).
The following are examples of behaviour that may amount to insider dealing under the Market Abuse Regulation, but are not intended to form an exhaustive list:5(1) [deleted]5(2) front running/pre-positioning - that is, a transaction for a person's own benefit, on the basis of and ahead of an order (including an order relating to a bid)4 which he is to carry out with or for another (in respect of which information concerning the order is inside information), which takes advantage
5With reference to article 9(4) of the Market Abuse Regulation, examples of using inside information solely for the purpose of proceeding with a merger or public takeover may include:(1) seeking from holders of securities, issued by the target, irrevocable undertakings or expressions of support to accept an offer to acquire those securities (or not to accept such an offer);(2) making arrangements in connection with an issue of securities that are to be offered as consideration
The following descriptions are intended to assist in understanding certain behaviours which may constitute insider dealing under the Market Abuse Regulation and5 concern the definition of inside information relating to financial instruments other than
commodityderivatives or emissions allowances or auctioned products based thereon:5(1) X, a director at B PLC has lunch with a friend, Y. X tells Y that his company has received a takeover offer that is at a premium
The following description is intended to assist in understanding certain behaviours which may constitute insider dealing under the Market Abuse Regulation and5 concerns the definition of inside information relating to commodity derivatives.Before the official publication of LME stock levels, a metals trader learns (from an insider) that there has been a significant decrease in the level of LME aluminium stocks. This information is reasonably expected to be disclosed in accordance
The following description is intended to assist in understanding certain behaviours which may constitute insider dealing under the Market Abuse Regulation and5concerns the definition of inside information relating to pending client orders.A dealer on the trading desk of a firm dealing in oil derivatives accepts a very large order from a client to acquire a long position in oil futures deliverable in a particular month. Before executing the order, the dealer trades for the firm
The following connected descriptions are intended to assist in understanding certain behaviours which may constitute insider dealing under the Market Abuse Regulation and concern5 the differences in the definition of inside information for commodity derivatives and for other financial instruments.(1) A person deals, on a
trading venue5
, in the equities of XYZ plc, a commodity producer, based on inside information concerning that company. (2) A person
1An entry in a firm's list of mandates underCASS 8.3.2 R (1) that relates to a mandate that was received in non-written form (eg in a telephone call) in the course of, or in connection with, its designated investment business must, as well as the information referred to at CASS 8.3.2 R (1), include the following details:(1) the nature of the mandate (eg debit card details);(2) the purpose of the mandate (eg collecting insurance premiums);(3) how the mandate was obtained (eg by
1A firm should not reproduce information meeting the conditions under CASS 8.2.1 R as a separate record (eg by including such information in its list of mandates under CASS 8.3.2 R (1)) unless the firm considers this necessary, as this creates additional risk of misuse. Making a record of the details concerning the mandate described in CASS 8.3.2C R would be appropriate.
1When keeping its list of mandates under CASS 8.3.2 R (1) 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 CASS 8.2.1 R 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
1A firm must retain the records required under CASS 8.3.1 R in relation to a particular mandate for the following period after it ceases to have the mandate (e.g. because the firm has destroyed the relevant document, electronic record or telephone recording), as applicable:(1) subject to (2), a minimum of one year; (2) a minimum of five years, where the relevant mandate was held by the firm in the course of, or in connection with, its MiFID business.
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
(1) A firm that only offers products from one part of a relevant market (for example, just bridging loans) should not disclose its service as unlimited.(2) When considering whether there are any limitations in its product range across the relevant market, a firm need not take account of the existence of exclusive deals which a mortgage lender offers to be sold by one or a limited number of mortgage intermediaries only (and not generally by mortgage intermediaries across the relevant
A firm may be able to describe its product range as unlimited even if it offers its customers only a selection of the regulated mortgage contracts available from the relevant market, or uses ‘panels’. The firm would need to ensure that any panel, or selection of products, is sufficiently broad in its composition that it is representative of products from across the market, that it is reviewed regularly, and that its use does not materially disadvantage any customer. In such a
The disclosure required by MCOB 4.4A.1R (1), MCOB 4.4A.2R and MCOB
4.4A.4R(1) about limitations in product range and direct deals should be expressed in simple, clear terms. A firm may wish to consider using a sentence appropriate to the circumstances, along the following lines:• “We are not limited in the range of mortgages we will consider for you.”• “We offer a comprehensive range of mortgages from across the market, but not deals that you can only obtain by going direct to
(1) Firms are reminded that, in the light of the rules and guidance in SYSC, they should have adequate systems and controls in place to ensure that the disclosure they make to a customer about their service reflects the service the customer is actually offered.(2) Firms are also reminded that Principle 7 (Communications with clients) and MCOB 3A.2.1R (Fair, clear2 and not misleading communications) are also relevant to how they describe their services, including in any business
A firm may demonstrate compliance with MCOB 4.4A.9R(2)8 by, for example, undertaking one or more of the following: building a requirement for oral communication of the relevant information into its training of staff as evidenced by its training and compliance manuals; inserting appropriate prompts into paper-based or automated sales systems; and having procedures in place to monitor compliance by staff with that rule. What is required in each case will depend on all the circu
(1) In many cases, MCOB 4.4A.12 R means that information will be given at the time of the first contact between the firm and the customer. However, there may be circumstances, for example in relation to a loan for a business purpose, where the possibility of the customer entering into, or varying the terms of, a regulated mortgage contract is only identified after preliminary discussions. The relevant disclosure is only required once this possibility is identified.(2) MCOB 4.4A.12
When a firm assesses whether the equity release transaction is appropriate to the needs and circumstances of the customer for the purposes of MCOB 8.5A.5 R, the factors it must consider include the following:(1) whether the benefits to the customer outweigh any adverse effect on:(a) the customer's entitlement (if any) to means-tested benefits; and(b) the customer's tax position (for example the loss of an Age Allowance);(2) alternative methods of raising the required funds such
(1) In considering the factor at MCOB 8.5A.6R (2)(a), a firm should: (a) establish, on the basis of information given by the customer about his needs and objectives, whether these appear to be within the general scope of a local authority (or other) grant (for example where the customer requires funds for essential repairs to his property); and(b) refer a customer to an appropriate source such as his local authority or Citizens Advice Bureau (or other similar agency) to identify
Different considerations apply when dealing with a customer with a payment shortfall. For example, the circumstances of the customer may mean that, viewed as a new transaction, a customer should not be advised to enter into an equity release transaction. In such cases, a firm may still be able to advise the customer to enter into an equity release transaction where it is more suitable than the customer's existing home finance transaction.
MCOB 8.5A.5R (3) means that where the advice provided is based on a selection of equity release transactions from a single or limited number of providers, the assessment of suitability should not be limited to the types of equity release transactions which the firm offers. A firm cannot recommend the 'least worst' equity release transaction where the firm does not have access to products appropriate to the customer's needs and circumstances. This means, for example, that if a
MCOB 8.5A.5R (1) does not require a firm to provide advice on investments. Whether such advice should be given will depend upon the individual needs and circumstances of the customer. MCOB 8 does not restrict the ability of an adviser to refer the customer to another source of investment advice (for example, where the adviser is not qualified to provide advice on investments).
In relation to taking account of the customer's income for the purposes of its assessment of whether the customer will be able to pay the sums due:(1) income may be derived from sources other than employment (such as pensions or investments), or from more than one job;(2) the evidence necessary to comply with MCOB 11.6.8 R will vary according to factors such as the employment status and the nature of the employment of the customer (for example, whether he is employed, self-employed,
(1) Examples of committed expenditure are: credit commitments such as secured and unsecured3 loans and credit cards; hire purchase agreements; child maintenance; alimony; and the cost of a repayment strategy where the customer has an interest-only mortgage (where affordability has not been assessed on a capital and interest basis: see MCOB 11.6.48 R (Assessing affordability under an interest-only mortgage)).(2) Examples of basic quality-of-living costs (which can be reduced, but
(1) Examples of evidence of income in MCOB 11.6.12R (1) are payslips and bank statements.(2) If a firm obtains details of the customer's credit commitments from the customer, it should corroborate the information, for example by making a credit reference agency search or checking credit card or bank statements.(3) Where the customer's credit or contractual commitments are due to end shortly after the regulated mortgage contract or home purchase plan (or variation) has been entered
(1) Examples of future changes to income and expenditure in MCOB 11.6.14 R are: reductions in income that may come about following the customer's retirement; where it is known that the customer is being made redundant; or where the firm is aware of another loan commitment that will become due during the term of the regulated mortgage contract or home purchase plan, such as an equity loan to assist in property purchase.(2) If the term of a regulated mortgage contract or home purchase
In relation to MCOB 11.6.18R (2):(1) an example of market expectations is the forward sterling rate published on the Bank of England website. A mortgage lender should not use its own forecast; and (2) a mortgage lender should not link its determination to market expectations without considering the likely effect of rate changes in accordance with the market expectations on the specific regulated mortgage contract in question.
Except as provided in MCOB 11.6.32R (2) and MCOB 11.6.39R (2), the monitoring in MCOB 11.6.22 R should:(1) include use of management information, key performance indicators and root cause analysis to review and (where appropriate) adjust and improve the mortgage lender's or home purchase provider's method of calculating the size of the advance for each customer, based on a consideration of the customer's income and expenditure; and (2) take place on a regular basis. However, a
The following are examples of repayment strategies that may, subject to the circumstances of the customer, be acceptable for the purposes of MCOB 11.6.41R (1):(1) regular deposits into a savings or investment product;(2) the periodic repayment of capital from irregular sources of income (such as bonuses or some sources of income from self-employment);3(3) the sale of assets such as another property or other land owned by the customer; and3(4) for a shared equity credit agreement
Where an insurance transaction
involves more than one firm acting
in a chain such that for example money is
transferred from a "producing" broker who has received client money from a consumer5 to an intermediate broker and thereafter to an insurance
undertaking, each broker firm will
owe obligations to its immediate client to
segregate client money which
it receives (in this example the producing broker in relation to the consumer5and the intermediate broker in relation to the
(1) CASS 5.5.23 R allows a firm with appointed representatives, field representatives and other agents to
avoid the need for the representative to
forward client money on a daily
basis but instead requires a firm to
segregate into its client money bank account amounts
which it reasonably estimates to be sufficient to cover the amount of client money which the firm expects
its representatives or agents
to receive and hold over a given period. At the expiry of each such period,
the
CASS 5.5.34 R sets
out the requirements a firm must
comply with when it transfers client money to
another person without discharging
its fiduciary duty owed to that client.
Such circumstances arise when, for example, a firm passes client money to another broker for the purposes
of the client's transaction
being effected. A firm can only
discharge itself from its fiduciary duty by acting in accordance with, and
in the circumstances permitted by, CASS 5.5.80 R.
A firm owes
a duty of care to a client when
it decides where to place client money.
The review required by CASS 5.5.43 R is intended to ensure that the risks inherent
in placing client money with
a bank are minimised or appropriately diversified by requiring a firm to consider carefully the bank or banks
with which it chooses to place client money.
For example, a firm which is
likely only to hold relatively modest amounts of client
money will be likely to be able to satisfy this
(1) A firm which pays professional fees (for example
to a loss adjuster or valuer) on behalf of a client may
do so in accordance with CASS
5.5.80 R (2) where this is done on the instruction
of or with the consent of the client.(2) When
a firm wishes to transfer client money balances to a third party in
the course of transferring its business to another firm,
it should do so in compliance with CASS 5.5.80 R and a transferee firm will come under an obligation to treat
any client
The FCA4 will consider the full circumstances of each case when determining whether or not to take action for a financial penalty or public censure. Set out below is a list of factors that may be relevant for this purpose. The list is not exhaustive: not all of these factors may be applicable in a particular case, and there may be other factors, not listed, that are relevant.4(1) The nature, seriousness and impact of the suspected breach, including:(a) whether the breach was deliberate
In some cases it may not be appropriate to take disciplinary measures against a firm for the actions of an individual6 (an example might be where the firm can show that it took all reasonable steps to prevent the breach). In other cases, it may be appropriate for the FCA4 to take action against both the firm and the individual6. For example, a firm may have breached the rule requiring it to take reasonable care to establish and maintain such systems and controls as are appropriate
9When determining under section 66A(5)(d) of the Act whether or not an SMF manager has taken such steps as a person in their position could reasonably be expected to take to avoid the contravention of a relevant requirement by the firm occurring (or continuing), additional considerations to which the FCA would expect to have regard include, but are not limited to:(1) the role and responsibilities of the SMF manager (for example, such steps as an SMF manager in a non-executive
3In addition to the general factors outlined in DEPP 6.2.1 G, there are some additional considerations that the FCA4 will have regard to when deciding whether to take action against a person that performs a controlled function without approval contrary to section 63A of the Act.4(1) The conduct of the person. The FCA4 will take into consideration whether, while performing controlled functions without approval, the person committed misconduct in respect of which, if he had been
In certain cases, it may be appropriate to discipline a listed company on the basis of the a Listing Principle or, if applicable, a Premium Listing Principle,5 alone. Examples include the following:5(1) where there is no detailed listing rule5 which prohibits the behaviour in question, but the behaviour clearly contravenes a Listing Principle or, if applicable, a Premium Listing Principle;55(2) where a listed company has committed a number of breaches of detailed rules5 which
In some cases, it may be appropriate for both the FCA4and another authority to be involved, and for both to take action in a particular case arising from the same facts. For example, a breach of RIE rules may be so serious as to justify the FCA4 varying or cancelling the firm's Part IV permission, or withdrawing approval from approved persons, as well as action taken by the RIE. In such cases, the FCA4 will work with the relevant authority to ensure that cases are dealt with efficiently
Firms are reminded that they must, under SYSC 6.1.1 R, establish, implement and maintain adequate policies and procedures sufficient to ensure compliance of the firm with the rules in this chapter. This should include, for example, establishing and maintaining policies and procedures concerning: (1) the frequency and method of the checks and reconciliations the firm is required to carry out under this section; (2) the frequency with which the firm is required to review its arrangements
(1) The rolling stock method allows a firm to perform its physical asset reconciliation in several stages, with each stage referring to a line of stock or group of stock lines in a designated investment selected by a firm (for example, all the shares with an issuer whose name begins with the letter 'A' or all the stock lines held in connection with a particular business line). (2) Where a firm uses the rolling stock method to perform a physical asset reconciliation, all the stages
The steps that a firm might take in order to protect its customer's interests will depend on a number of factors, including the nature and structure of the home purchase plan, home reversion plan or regulated sale and rent back agreement2 and the jurisdiction in which the property is situated. If it is not possible to achieve reasonable protection (for example, due to impediments under a particular legal system) then a firm should not enter into, arrange or administer the pla
(1) In the FCA's view, a customer's interests will include:4(a) protection of the customer's rights under the plan, in particular the right to occupy the property throughout its term;(b) protection of any interest (legal or beneficial) that the customer retains, acquires or is intended to acquire in the property, including the expectation that such interests will be unencumbered by third party interests; 4(c) that, where a customer pays sums under a home purchase plan towards
A firm is unlikely, for example, to be treating its customer fairly in relation to termination of a home purchase plan, home reversion plan or regulated sale and rent back agreement2if:(1) the grounds on which it may terminate all or part of a plan or agreement2 are unduly wide, or on which a customer may terminate are unduly narrow; or(2) the customer is not given appropriate notice of termination.
A firm is unlikely, for example, to be treating a reversion occupier or SRB agreement seller2 fairly if:(1) the reversion occupier or SRB agreement seller2 is obliged to maintain the property to a standard which exceeds the standard that the property is in when the home reversion plan or regulated sale and rent back agreement2 commences;(2) the reversion occupier or SRB agreement seller2 is not entitled to, or is not given, reasonable notice of an inspection, or the inspection