Related provisions for LR 10.5.3

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To access the FCA Handbook Archive choose a date between 1 January 2001 and 31 December 2004 (From field only).

CONC 7.12.3GRP
(1) CONC 1.2.2 R requires a firm to ensure its employees and agents comply with CONC and that it takes reasonable steps to ensure other persons who act on its behalf do so. This rule would apply where a debt collector acts as agent or on behalf of a lender.(2) Situations where it may be justified for a firm to refuse to deal with a person acting on behalf of a customer may include, for example, refusing to deal with that person where the firm is able to show that the person has
REC 2.10.3GRP
In determining whether a UK recognised body's measures are appropriate to reduce the extent to which its facilities can be used for a purpose connected with market abuse or financial crime, to facilitate their detection and to monitor their incidence, the FCA3 may have regard to:3(1) whether the rules of the UK recognised body enable it to disclose any information to the FCA,3 or other appropriate bodies involved in the detection, prevention or pursuit of market abuse or financial
MCOB 10.4.3GRP
(1) MCOB 10.4.2 R means, for example, that the following charges must be included within the total charge for credit:(a) any fee payable to a mortgage intermediary for arranging the contract (see MCOB 10.4.2 R(2)); and(b) any higher lending charge.(2) The FCA takes the view that charges required to be included within the total charge for credit should not be excluded on the basis of these charges being refundable in certain circumstances. (3) The FCA also takes the view that the
TC App 6.1.1GRP

1Introduction

1.

An accredited body is a body appearing in the list of such bodies in the Glossary.1

1

2.

Information on accredited bodies, including guidance on the process for including an applicant body in the list, is set out below and the obligation to pay the application fee is set out in FEES 3.2.

3.

[deleted]1

1

Process for including a body in the list of accredited bodies

4.

In considering the compatibility of a proposed addition with the statutory objectives, the FCA will determine whether the applicant will, if accredited, contribute to securing an appropriate degree of protection for consumers having regard in particular to:

(1)

the matters set out in paragraphs 10 to 20; and

(2)

the rules and practices of the applicant.

5.

An application to the FCA to be added to the list of accredited bodies should set out how the applicant will satisfy the criteria in paragraphs 10 to 20. The application should be accompanied by a report from a suitable auditor which sets out its independent assessment of the applicant's ability to meet these criteria. An application form is available from the FCA upon request.

6.

When considering an application for accredited body status the FCA may:

(1)

carry out any enquiries and request any further information that it considers appropriate, including consulting other regulators;

(2)

ask the applicant or its specified representative to answer questions and explain any matter the FCA considers relevant to the application;

(3)

take into account any information which the FCA considers appropriate to the application; and

(4)

request that any information provided by the applicant or its specified representative is verified in such a manner as the FCA may specify.

7.

The FCA will confirm its decision in writing to the applicant.

8.

The FCA will enter into an agreement with the applicant or accredited body which will require the accredited body to meet, among other obligations, the criteria and expectations set out in this Appendix or other parts of the Handbook, as amended from time to time.5 Approval as an accredited body becomes effective only when the name of the applicant is added to the Glossary definition of accredited body.

9.

Paragraphs 10 to 20 set out the criteria which an applicant should meet to become an accredited body and which an accredited body should meet at all times.

Acting in the public interest and furthering the development of the profession

10.

The FCA will expect an accredited body to act in the public interest, to contribute to raising consumer confidence and professional standards in the retail investment advice market and to promoting the profession.

Carrying out effective verification services

11.

If independent verification of a retail investment adviser's professional standards has been carried out by an accredited body, the FCA will expect the accredited body to provide the retail investment adviser with evidence of that verification in a durable medium and in a form agreed by the FCA. This is referred to in this Appendix and TC 2.15 as a ‘statement of professional standing’.

12.

The FCA will expect an accredited body to have in place effective procedures for carrying out its verification activities. These should include:

(1)

verifying that each retail investment adviser who is a member of or subscriber to the accredited body's verification service has made an annual declaration in writing that the retail investment adviser has, in the preceding 12 months, complied with APER or4COCON2(as applicable)4 and completed the continuing professional development required under TC 2.1.15 R;1

(2)

verifying annually the continuing professional development records of no less than 10% of the retail investment advisers who have used its service in the previous 12 months to ensure that the records are accurate and the continuing professional development completed by the retail investment advisers is appropriate; and

(3)

verifying that, if required by TC, the retail investment advisers who use its services have attained an appropriate qualification. This should include, where relevant, checking that appropriate qualification gap-fill records have been completed by the retail investment advisers.

13.

The FCA will not expect an accredited body to carry out the verification in paragraph 12(3) if a retail investment adviser provides the accredited body with evidence in a durable medium which demonstrates that another accredited body has previously verified the retail investment adviser's appropriate qualification, including, where relevant, appropriate qualification gap-fill.

14.

The FCA will expect an accredited body to make it a contractual condition of membership (where a retail investment adviser is a member of the accredited body) or of using its verification service (where a retail investment adviser is not a member of the accredited body) that, as a minimum, the accredited body will not continue to verify a retail investment adviser's standards and will3 withdraw its statement of professional standing if5:

(1) it is provided with false information in relation to a retail investment adviser’s qualifications or continuing professional development;5

(2) it is provided with a false declaration in relation to a retail investment adviser’s compliance with APER or COCON (as applicable); or5

(3) the retail investment adviser becomes subject to a prohibition order.5

In this regard, an accredited body must have in place appropriate decision-making procedures with a suitable degree of independence and transparency.

2223234334

Having appropriate systems and controls in place and providing evidence to the FCA of continuing effectiveness

15.

The FCA will expect an accredited body to ensure that it has adequate resources and systems and controls in place in relation to its role as an accredited body.

16.

The FCA will expect an accredited body to have effective procedures in place for the management of conflicts of interest and have a well-balanced governance structure that engages a broad set of qualities and competences,5 with at least one member who is independent of the sector.

17.

The FCA will expect an accredited body to have a code of ethics and to ensure that its code of ethics and verification service terms and conditions do not contain any provisions that conflict with APER or COCON (as applicable)4.

2

Ongoing cooperation with the FCA

18.

The FCA will expect an accredited body to provide the FCA with such documents and information as the FCA reasonably requires, and to cooperate with the FCA in an open and transparent manner.

19.

The FCA will expect an accredited body to share information as soon as reasonably practicable with the FCA (subject to any legal constraints, including those in data protection legislation)5 in relation to the professional standards of the retail investment advisers who use its service as appropriate. Examples might include conduct issues, complaints, dishonestly obtaining or falsifying qualifications or continuing professional development, a failure to complete appropriate continuing professional development, or the accredited body’s decision to withdraw or not renew a retail financial adviser’s statement of professional standing. 5The FCA will expect an accredited body to notify the firm if issues such as these arise.

20.

The FCA will expect an accredited body to submit to the FCA, every 2 years, a5 report by a suitable independent auditor which sets out that auditor’s assessment of the quality of the body’s satisfaction of the criteria in paragraphs 10 to 19 in the preceding 245months and whether, in the auditor’s view, the body is capable of satisfying the criteria in the subsequent 245months. The FCA will expect this report to be submitted to the FCA every 2 years, within 35months of the anniversary of the date on which the accredited body was added to the Glossary definition of accredited body.

Withdrawal of accreditation

21.

If an accredited body fails or, in the FCA's view, is likely to fail to satisfy the criteria, the FCA will discuss this with the accredited body concerned. If, following a period of discussion, the accredited body has failed to take appropriate corrective action to ensure that it satisfies and will continue to satisfy the criteria, the FCA will withdraw the accredited body’s accreditation. Withdrawal of an accredited body’s accreditation will be reflected in the Handbook by amending the list published under the Glossary definition of accredited body5. The FCAFCA will expect the body to notify each retail investment adviser holding a current statement of professional standing of the FCA's decision. A statement of professional standing issued by the accredited body before the withdrawal of accreditation will continue to be valid until its expiration.
ICOBS 2.1.4GRP

In practice, private individuals may act in a number of capacities. The following table sets out a number of examples of how an individual acting in certain capacities should, in the FCA's view, be categorised.

Customer classification examples

Capacity

Classification

Personal representatives, including executors, unless they are acting in a professional capacity, for example, a solicitor acting as executor.

Consumer

Private individuals acting in personal or other family circumstances, for example, as trustee of a family trust.

Consumer

Trustee of a trust such as a housing or NHS trust.

Commercial customer

Member of the governing body of a club or other unincorporated association such as a trade body and a student union.

Commercial customer

Pension trustee.

Commercial customer

Person taking out a policy covering property bought under a buy-to-let mortgage.

Commercial customer

Partner in a partnership when taking out insurance for purposes related to his profession.

Commercial customer
COLL 8.2.6RRP

This table belongs to COLL 8.2.5 R

1

Description of the authorised fund

Information detailing:

(1)

the name of the authorised fund;

(2)

that the authorised fund is a qualified investor scheme; and

(3)

in the case of an ICVC, whether the head office of the company is situated in England and Wales or Wales or Scotland or Northern Ireland.

3Property Authorised Investment Funds

1A

For a property authorised investment fund, a statement that:

(1)

it is a property authorised investment fund;

(2)

no body corporate may seek to obtain or intentionally maintain a holding of more that 10% of the net asset value of the fund; and

(3)

in the event that the authorised fund manager reasonably considers that a body corporate holds more than 10% of the net asset value of the fund, the authorised fund manager is entitled to delay any redemption or cancellation of units in accordance with 6A if the authorised fund manager reasonably considers such action to be:

(a)

necessary in order to enable an orderly reduction of the holding to below 10%; and

(b)

in the interests of the unitholders as a whole.

2

Constitution

The following statements:

(1)

the scheme property of the scheme is entrusted to a depositary for safekeeping (subject to any exception permitted by the rules);

(2)

if relevant, the duration of the scheme is limited and, if so, for how long;

(3)

charges and expenses of the scheme may be taken out of scheme property;

(4)

for an ICVC:

(a)

what the maximum and minimum sizes of the scheme's capital are; and

(b)

the unitholders are not liable for the debts of the company;5

6

5(4A)

for an ICVC which is an umbrella, a statement that the assets of a sub-fund belong exclusively to that sub-fund and shall not be used to discharge directly or indirectly the liabilities of, or claims against, any other person or body, including the umbrella, or any other sub-fund, and shall not be available for any such purpose;6

6(4B)

for a co-ownership scheme which is an umbrella, the property subject to a sub-fund is beneficially owned by the participants in that sub-fund as tenants in common (or, in Scotland, is the common property of the participants in that sub-fund) and must not be used to discharge any liabilities of, or meet any claims against, any person other than the participants in that sub-fund;

6(4C)

for a limited partnership scheme, that the scheme prohibits pooling as is mentioned in section 235(3)(a) of the Act in relation to separate parts of the scheme property, with the effect that the scheme cannot be an umbrella;

(5)

for an AUT:

(a)

the trust deed:

(i)

is made under and governed by the law of England and Wales, or the law of Scotland or the law of Northern Ireland;

(ii)

is binding on each unitholder as if he had been a party to it and that he is bound by its provisions; and

(iii)

authorises and requires the trustee and the manager to do the things required or permitted of them by its terms;

(b)

subject to the provisions of the trust deed and all the rules made under section 247 of the Act (Trust scheme rules):

(i)

the scheme (other than sums held to the credit of the distribution account) is held by the trustee on trust for the unitholders according to the number of units held by each unitholder or, where relevant, according to the number of individual shares in the scheme property represented by the units held by each unitholder; and

(ii)

the sums standing to the credit of any distribution account are held by the trustee on trust to distribute or apply in accordance with COLL 8.5.15 R (Income);

(c)

a Unitholder is not liable to make any further payment after he has paid the price of his units and that no further liability can be imposed on him in respect of the units he holds; and

(d)

payments to the trustee by way of remuneration are authorised to be paid (in whole or in part) out of the scheme property; and6

6

(6)6

for an ACS:

(a)

the contractual scheme deed:

(i)

is made under and governed by the law of England and Wales, or the law of Scotland or the law of Northern Ireland;

(ii)

is binding on each unitholder as if he had been a party to it and that he is bound by its provisions;

(iii)

authorises and requires the depositary and the authorised contractual scheme manager to do the things required or permitted of them by its terms; and

(iv)

states that units may not be issued to a person other than a person7:

(A)

who 7is a:

(i)

professional ACS investor;

(ii)

large ACS investor; or

(iii)

person who already holds units in the scheme; and

(B)

to whom units in a qualified investor scheme may be promoted under COBS 4.12.4 R;7

7

(v)

states that the authorised contractual scheme manager of an ACS must redeemunits as soon as practicable after becoming aware that those units are vested in anyone (whether as a result of subscription or transfer of units) other than a person meeting the criteria in (iv)(A) and (B);

(vi)

states that for a co-ownership scheme:

(A)

the scheme property is beneficially owned by the participants as tenants in common (or, in Scotland, is the common property of the participants);

(B)

the arrangements constituting the scheme are intended to constitute a co-ownership scheme as defined in section 235A(2) of the Act; and

(C)

the operator and depositary are required to wind up the scheme if directed to do so by the FCA in exercise of its power under section 261X (Directions) or section 261Z (Winding up or merger of master UCITS) of the Act;

(vii)

states:

(A)

whether the transfer of units in the ACS scheme or, for a co-ownership scheme which is an umbrella (sub-funds of which pursue differing policies in relation to transfer of units), in each particular sub-fund, is either:

(i)

prohibited; or

(ii)

allowed;

(B)

where transfer of units is allowed by the scheme or, where appropriate the sub-fund, in accordance with (A)(ii), units may only be transferred in accordance with the conditions specified by FCArules, including that units may not be transferred to a person other than a person :

7

(i)

who 7is a:

(1)

professional ACS investor; or

(2)

large ACS investor; or

(3)

person who already holds units in the scheme; and

(ii)

to whom units in a qualified investor scheme may be promoted under COBS 4.12.4 R; and7

7

(viii)

states that for a limited partnership scheme, the scheme is not dissolved on any person ceasing to be a limited partner or nominated partner provided that there remains at least one limited partner;

(b)

subject to the provisions of the contractual scheme deed and all the rules made under section 261I of the Act (Contractual scheme rules) and for the time being in force:

(i)

the scheme property (other than sums standing to the credit of the distribution account) is held by, or to the order of, the depositary for and on behalf of the unitholders according to the number of units held by each unitholder or, where relevant, according to the number of individual shares in the scheme property represented by the units held by each unitholder; and

(ii)

the sums standing to the credit of any distribution account are held by the depositary to distribute or apply them in accordance with COLL 8.5.15 R(Income); and

(c)

a unitholder in a co-ownership scheme is not liable to make any further payment after he has paid the price of his units and that no further liability can be imposed on him in respect of the units he holds;

(d)

a unitholder in a limited partnership scheme is not liable for the debts or obligations of the limited partnership scheme beyond the amount of the scheme property which is available to the authorised contractual scheme manager to meet such debts or obligations, provided that the unitholder does not take part in the management of the partnership business;

(e)

the exercise of rights conferred on limited partners by FCA rules does not constitute taking part in the management of the partnership business;

(f)

the limited partners, other than the nominated partner, are to be the participants in the scheme; and

(g)

the operator of a co-ownership scheme is authorised to:

(i)

acquire, manage and dispose of the scheme property; and

(ii)

enter into contracts which are binding on unitholders for the purposes of, or in connection with, the acquisition, management or disposal of scheme property.

3

Investment objectives

A statement of the object of the scheme, in particular the types of investments and assets in which it and each sub-fund (where applicable) may invest and that the object of the scheme is to invest in property of that kind with the aim of spreading investment risk.

4

Units in the scheme

A statement of:

(1)

the classes of units which the scheme may issue, indicating, for a scheme which is an umbrella, which class or classes may be issued in respect of each sub-fund; and

(2)

the rights attaching to units of each class (including any provisions for the expression in two denominations of such rights).

5

Limitation on issue of and redemption of units

Details as to:

(1)

the provisions relating to any restrictions on the right to redeem units in any class; and

(2)

the circumstances in which the issue of the units of any particular class may be limited.

6

Income and distribution

Details of the person responsible for the calculation, transfer, allocation and distribution of income for any class of unit in issue during the accounting period.

3Redemption or cancellation of units on breach of law or rules

6A

A statement that where any holding of units by a unitholder is (or is reasonably considered by the authorised fund manager to be) an infringement of any law, governmental regulation or rule, those units must be redeemed or cancelled.

7

Base currency

A statement of the base currency of the scheme.

8

Meetings

Details of the procedures for the convening of meetings and the procedures relating to resolutions, voting and the voting rights for unitholders.

9

Powers and duties of the authorised fund manager and depositary

Where relevant, details of any function to be undertaken by the authorised fund manager and depositary which the rules in COLL require to be stated in the instrument constituting the fund.8

8

10

Termination and suspension

Details of:

(1)

the grounds under which the authorised fund manager may initiate a suspension of the scheme and any associated procedures; and

(2)

the methodology for determining the rights of unitholders to participate in the scheme property on winding up.

110A

Investment in overseas2 property through an intermediate holding vehicle1

If investment in an overseas2 immovable is to be made through an intermediate holding vehicle or a series of intermediate holding vehicles, a statement that the purpose of that intermediate holding vehicle or series of intermediate holding vehicles will be to enable the holding of overseas2 immovables by the scheme.1

11

Other relevant matters

Details of those matters which enable the scheme, authorised fund manager or depositary to obtain any privilege or power conferred by the rules in COLL which is not otherwise provided for in the instrument constituting the fund.8

8
CONC 7.17.7RRP
The notice required by CONC 7.17.4 R must contain the following information:(1) a form of wording to the effect that the notice is given in compliance with the rules because the borrower is behind with the sums payable under the agreement;(2) a form of wording encouraging the borrower to discuss the state of his account with the firm;(3) the date of the notice;(4) (a) the name, telephone number or numbers, the postal address, and, where appropriate, any other address of the firm;