FCA says there are still issues with debt managers handling of vulnerable customers

The Financial Conduct Authority (FCA) has published the results of its second thematic review of the debt management sector. In this review, the regulator examined the practices of both commercial firms and not-for-profit organisations that provide debt advice and administer debt management plans.

On a positive note, the FCA says that “most customers are getting better advice and outcomes today than was previously the case” when it compared its findings to those of the first thematic review. The corporate culture in most firms is now more focused on customer outcomes.

However, the study also found that two firms had “unacceptably poor standards and practices”, and one of these firms is now subject to additional supervisory action, and the other is now the subject of a formal investigation by the FCA’s Enforcement function.

Examples of the poor conduct exhibited by these two firms included:

  • Failing to identify an 87-year-old woman who was on a 95-year debt management plan as being vulnerable, even though she had told the firm she was uncomfortable with technology, figures and paperwork. The FCA also noted that the firm’s advisers talked over her rather than letting her speak freely, pressured her into signing documents and refused to offer assistance on occasions when she was showing clear signs of distress
  • Collecting payments from a customer for six months even though these payments were well beyond the customer’s means. Furthermore, the customer had been diagnosed with cancer

More generally, the FCA says that:

  • Eight of the 12 firms who participated in the study need to do more to improve their identification and treatment of vulnerable customers
  • There is a general need for firms to provide better advice to couples, or others seeking help together, noting that firms need to consider what debt solutions are suitable for each individual customer
  • Firms could do more to explain to customers how their recommended debt solutions work, and why their advice is suitable
  • Some firms failed to proactively identify or act on material information provided by customers, meaning that advice may not have been suitable for customers’ individual circumstances. Others failed to identify when customers’ circumstances had changed, and when the debt management plan payments may have become unaffordable
  • Improvement is needed in identifying the need to review a customer’s circumstances; and in recognising when it may be appropriate to adapt or consider the suitability of the customers’ debt management plans
  • Some firms were not responding to unrealistically low expenditure figures provided by customers, and the FCA cites the example of a customer who claimed to spend just £10 a week on food, toiletries and cleaning
  • Some firms were making errors in their assessments of customers’ income levels. Examples included multiplying the weekly bills by four and therefore underestimating how much the customer was paying monthly; and failing to identify if income was from zero-hour contracts, fixed-term contracts and agency work, all of which may indicate that the current level of income will not continue in the longer term
  • Some firms were not complying with the rule that requires firms to refer customers to an appropriate not-for-profit debt advice body if they are unable to afford the firm’s fees, or if they have other debt problems for which the firm is unable to assist

Jonathan Davidson, Executive Director of Supervision, Retail and Authorisation at the FCA, said:

“It is vital that consumers who need help with their debts get quality advice and, if they enter into a debt management plan, that they can afford the payments. We are pleased to see the progress that debt management firms have made in becoming compliant. Those who have focused their culture on what is best for their customers, and not just on compliance, have made the biggest strides.

“But many firms have more to do, particularly for more vulnerable consumers, and we have also found that a small number still have unacceptable standards and practices – so we are taking action to stop this.”

The information shown in this article was correct at the time of publication. Articles are not routinely reviewed and as such are not updated. Please be aware the facts, circumstances or legal position may change after publication of the article



Adviser trade body welcomes the Brexit delay

At the time of writing, whether the UK will exit the European Union in the near future remains extremely uncertain. Equally uncertain is what form Brexit will take – here ‘no deal’ remains a possibility, as does the Prime Minister’s deal, even though the House of Commons has twice voted down this agreement by 230 and 149 votes respectively. A third vote on the deal is planned in the House on March 29. A softer form of Brexit, such as a permanent customs union and/or Norway-style membership of the single market, are also still on the table.

The only thing we do know for certain is that the UK will no longer be leaving on March 29, and at present Brexit day is set for April 12, although another extension is still possible. Firms need to know that the UK could still exit without a deal in the second week of April.

The Financial Conduct Authority (FCA) has confirmed that if there is a transition period following Brexit day that the existing passporting regime will continue throughout this period. Passporting allows firms based in the UK to carry out financial services in other EU and European Economic Area countries without requiring authorisation from the appropriate European national regulator. The Prime Minister’s deal includes provision for a 21-month transition, and it can be assumed there will also be a transition period of similar length if Parliament was to approve an alternative Brexit deal.

However, if the UK exits without a deal, then there will be no transition period, simply because there will be no agreed UK-EU relationship to ‘transition’ towards. In the event of no deal, passporting will therefore end abruptly.

The FCA has put in place a Temporary Permissions Regime to allow European firms to continue to operate in the UK should there be no deal. This Regime requires firms to register for temporary permission with the FCA, then at a later date, it can submit a full authorisation application to continue trading in the UK in the longer term.

Unfortunately, not all EU member states have put in place similar arrangements. However, UK-based firms that have operations in one of these countries – Germany, Spain, France, Ireland, Italy, Luxembourg and the Netherlands – can register for temporary permission with the appropriate national regulators.

The Personal Investment Management & Financial Advice Association (PIMFA) has been making its views on Brexit known for some time, and on hearing that Brexit day had been delayed, it again expressed the hope that the Brexit adjustment process for member firms would be as painless as possible.

John Barrass, PIMFA’s Deputy CEO, commented:

“PIMFA has actively campaigned for a transition period close to the status quo on the UK’s departure from the EU that would allow time for adjustments before moving to full 3rd country status.  We have also made clear the need for minimal disruption of business to PIMFA member firms, and for a smooth changeover to the new UK/EU relationship that will prevail once the transition period is ended.  This will help ensure that the families and individuals whose finances our firms manage and assist with across the nation will experience minimal adverse consequences from the change.

“A sensibly managed withdrawal is thus of critical importance for our firms and their clients and will help the UK retain its standing as the world’s second largest centre for private wealth management and financial advice.”

The information shown in this article was correct at the time of publication. Articles are not routinely reviewed and as such are not updated. Please be aware the facts, circumstances or legal position may change after publication of the article


FCA sends risk assessment letter to high-cost credit firms

The Financial Conduct Authority (FCA) has sent what it describes as a Portfolio Strategy Letter to firms that provide high cost lending products. The letter sets out the FCA’s view of the key risks that high cost lenders pose to their consumers or the markets they operate in. It adds that recipients of the letter should consider the degree to which these risks exist within their firms and should review their strategies for mitigating them.

The regulator says it believes that the key risks faced by the sector include:

  • Firms that offer large financial incentives and/or those with a high-pressure sales environment, especially when these are accompanied by inadequate or ineffective systems and controls
  • A high volume of relending, which may indicate unsustainable lending patterns
  • Inadequate affordability checks
  • A significant rise in the proportion of loan repayments being made by guarantors

The letter goes on to explain the areas in which the FCA will focus its supervisory activities:

  • Understanding the motivation for, and impact of, re-lending on firms and their customers
  • Ensuring firms are conducting adequate affordability statements before deciding whether to lend
  • Looking at whether firms are handling complaints appropriately, whether they are analysing the root causes of complaints and whether they are taking into account relevant decisions made by the Financial Ombudsman Service
  • Examining whether firms who are considering buying or selling an existing loan portfolio ensure that customers are treated fairly, and whether these firms are notifying the FCA of their intentions at an early stage
  • Checking that firms who are expanding their business model have applied for the required FCA permissions
  • Ensuring that firms adapt to new regulatory rules and guidance
  • Understanding the root causes of the increase in the number of payments being made by guarantors and considering whether this indicates that firms are conducting adequate affordability assessments. The FCA is also concerned that guarantors may not fully understand how likely it is that they will be called upon to make a payment

According to the letter, the FCA classes all of the following as being high cost lending products:

  • guarantor loans
  • payday loans and other high-cost short-term credit
  • high-cost unsecured loans aimed at sub-prime customers
  • home-collected credit
  • income smoothing products
  • logbook loans
  • pawnbroking
  • rent-to-own

The information shown in this article was correct at the time of publication. Articles are not routinely reviewed and as such are not updated. Please be aware the facts, circumstances or legal position may change after publication of the article


SRA fines claims law firm over marketing practices

The Solicitors Regulation Authority (SRA) has issued its biggest ever fine of £124,436 after a Hertfordshire-based law firm sent around six million misleading letters over a 10-month period regarding payment protection insurance (PPI) claims.

The failings identified by the SRA include:

  • Sending the letters in plain envelopes on which was printed: ‘Important information enclosed’ and ‘Authorised and Regulated by the Solicitors Regulation Authority’, which may have created a false impression that what was enclosed was a vital communication
  • Stating that the firm employed ‘professional forensic investigators’, when in fact none of its staff held the job title of ‘investigator’
  • Claiming that the existence of a PPI policy could not be hidden from its ‘professional forensic investigators’, but at the time the firm did not employ anyone with the job title of investigator.
  • Having no process in place to verify who was instructing the firm – on one occasion the firm thought it was acting for a particular client when in fact it was taking instructions from a third party who was impersonating them. The person who was actually entitled to make a claim, and by whom the firm thought it was being instructed, had in fact died some years earlier

The SRA code of conduct states that all marketing must be ‘accurate and not misleading’.

The Authority notes in mitigation that the firm:

  • Co-operated fully with its investigation – as with many other regulators the fine was reduced by 20% in recognition of this
  • Has upgraded its IT systems
  • Has amended the marketing letters it now sends out
  • Has adopted new procedures for electronic verification of clients

Law firms regulated by the SRA are not permitted to cold call prospective clients in the same way that a claims management company might attempt to secure business.

An SRA spokesperson said:

“The fine we have agreed with [name of firm] is substantial and is our largest ever. It reflects the millions of letters with misleading information that were sent out across the UK and that this was no isolated incident.

“However, after the misconduct was discovered, the firm co-operated fully with us and has changed its processes accordingly to make sure this does not happen again.

“The deadline for making PPI compensation claims is now only six months away, so marketing activity will doubtless increase. We are clear that all firms involved in this work must adhere to the standards we set – we will take robust action if we are given evidence of misconduct.”

A spokesperson for the firm said:

“We understand that out of six million marketing letters we sent, seven resulted in complaints to the SRA. We are grateful to the SRA for highlighting their concerns and for helping us improve our consumer communications. We now understand why our original communications were misleading in parts, but it is important to emphasise that no consumers were ever financially disadvantaged as a result.”

The information shown in this article was correct at the time of publication. Articles are not routinely reviewed and as such are not updated. Please be aware the facts, circumstances or legal position may change after publication of the article


ICO executes searches at CMCs

The Information Commissioner’s Office (ICO) has announced that it has searched offices in Brighton and Birmingham as part of a year-long investigation into companies who are suspected of breaching the Privacy and Electronic Communications Regulations 2003 (PECR). The data protection watchdog says that the companies are suspected of making millions of illegal nuisance calls, including both live and automated calls.

The calls concerned two areas of claims management activity – road traffic accidents and personal injury claims – as well as insurance for household goods.

PECR says that companies should not make live marketing calls to any individual who has registered with the Telephone Preference Service, or who has informed the company in question that they do not wish to receive marketing calls. The same law says that automated calls can only be made to individuals who have explicitly consented in advance to receiving communications of this nature.

The ICO says it has received more than 600 complaints about the marketing practices of these companies, and that many of the complainants have alleged that they were unable to identify who the calls were from and were unable to opt out of receiving future marketing communications, which would also constitute breaches of PECR.

ICO enforcement officers seized computer equipment and documents for analysis from the offices and will now consider if enforcement action is appropriate.

Andy Curry, head of the anti-nuisance call team at the ICO, said:

“Today’s searches will fire a clear warning shot to business owners who operate outside the law by making nuisance marketing calls to people who have no wish to receive them.

“The evidence seized will help us identify any illegal business activities and assist us to take enforcement action, which may include action against the directors, on behalf of the victims who have turned to us for help.”

Mr Curry’s comments about possible action against the directors of these companies suggests that the ICO may be about to use its newly granted power to issue personal fines to individual company directors. Although it is yet to make use of this power, the data protection regulator can impose fines of up to £500,000 on any of the directors. This theoretically means that a company with two directors that breaks the rules could be hit with a £1.5 million penalty – £500,000 for the company itself and £500,000 each for the two directors.

The information shown in this article was correct at the time of publication. Articles are not routinely reviewed and as such are not updated. Please be aware the facts, circumstances or legal position may change after publication of the article


FCA announces requirements for firms for its new directory

The Financial Conduct Authority (FCA) has announced that it will be introducing a new Directory of financial services staff, to complement the existing Financial Services Register.

The regulator says the Directory will make it harder for individuals who are not fit and proper to continue operating in the industry. It adds that it will assist the FCA in “monitoring the market, building intelligence and targeting interventions”.

The following individuals will need to be listed on the Directory:

  • All executive and non-executive directors and senior managers of every authorised firm
  • All staff who have been certified as fit and proper by the firm, under the requirements of the Senior Managers and Certification Regime (SM&CR)
  • Staff who conduct business with clients and who need to hold a professional qualification

After SM&CR is introduced, only certain Senior Managers will need to be listed on the Financial Services Register, with this Directory being used to list other individuals who hold positions of responsibility.

Banks and insurers, who are already subject to the SM&CR can commence submitting data for the Directory from September 2019 – exact date to be confirmed. Other firms can commence submitting data from December 9 2019 – the date on which they become subject to SM&CR – and the final deadline for submission is December 9 2020. All submissions will be made via the FCA’s Connect system, and firms are responsible for ensuring the information they supply is accurate. The Directory is scheduled to launch in March 2020.

The information that will appear on the Directory for each firm includes:

  • Its name, firm reference number, address, telephone number, email address and website address
  • Any restrictions placed on the activities the firm can carry out
  • The date on which the firm’s Directory information was last updated – firms that have not made any changes to their data within 12 months should confirm the information is still correct

Additionally, the following information will be listed for each individual who appears in the Directory:

  • Their full name
  • Their individual reference number – this will be the same as the one they hold on the existing Register, and if they are not listed on the Register the FCA will allocate a number to them
  • Roles they have held within the firm
  • The start and end dates of each role – where an individual no longer holds a relevant role, firms will need to tell the FCA when it ended
  • The types of business the individual is qualified to undertake
  • Their workplace location
  • The methods by which they will engage with customers (e.g., online, telephone or face to face)
  • Memberships of professional bodies
  • Any enforcement action taken against the individual

The FCA already holds some of this information, and it will add this information to the Directory. Firms will need to submit all of the other data.

In normal circumstances, firms should update the information held for joiners and leavers within one business day.

The FCA can use any of its enforcement powers for firms that fail to comply with their Directory obligations.

Jonathan Davidson, Executive Director of Supervision – Retail and Authorisations at the FCA, said:

“The new Directory will help consumers to protect themselves from unauthorised individuals by clearly and easily identifying individuals who have been banned by the FCA. It will also help firms to understand the employment history of candidates when hiring.”

The information shown in this article was correct at the time of publication. Articles are not routinely reviewed and as such are not updated. Please be aware the facts, circumstances or legal position may change after publication of the article


FCA writes to P2P firms about their wind down arrangements

The Financial Conduct Authority (FCA) chairman Andrew Bailey has written to the CEO, or equivalent, of every authorised firm that conducts peer-to-peer (P2P) lending. The main purpose of the letter is to request that all of these firms review the effectiveness of their wind-down arrangements. Thinking about possible business failure is not a pleasant prospect for any firm, however the FCA requires P2P firms to have wind-down arrangements in place to prevent customer harm. In any case, owners of P2P firms may on occasion simply decide to exit the industry in search of pastures new.

The FCA has been prompted to send this letter after its recent review of some firms’ arrangements found that some were not meeting existing regulatory requirements concerning wind-down provisions.

Some of the most important things to consider are:

  • Has the firm identified the situations in which a wind-down may be necessary, e.g. the loss of a key revenue driver, the loss of critical infrastructure or the impact of market volatility
  • Does the firm have sufficient funding to cover the cost of managing and administering the wind-down? Consider here that some P2P platforms are mainly funded via upfront fees, and there is little or no residual income throughout the lifetime of the loan, which may make it difficult to sell the firm to a buyer
  • If a third party is engaged to assist with the wind-down, do they have the appropriate regulatory permissions?
  • Is it appropriate to enter into an arrangement with another firm, either for them to take over the management and administration of P2P agreements; or to act as guarantor for the P2P agreements
  • Has the P2P firm undertaken sufficient due diligence on back-up service providers – do these providers have the capability, relevant permissions, expertise and capacity to support wind-down arrangements?
  • Have the tax implications of a wind-down been considered, for example customers who hold a peer-to-peer ISA may be at risk of losing the associated tax benefits

The risks of not having appropriate wind-down arrangements in place include:

  • Investors may not receive some or all of the loan repayments for loans made through the platform
  • Investors may need to recover repayments directly from borrowers

P2P firms must notify their lenders of the wind-down arrangements they have in place.

At a later date, the FCA will ask certain firms to provide details of their wind-down arrangements. The letter concludes with a warning that all firms must notify the FCA immediately if the ongoing viability of their business is threatened.

The information shown in this article was correct at the time of publication. Articles are not routinely reviewed and as such are not updated. Please be aware the facts, circumstances or legal position may change after publication of the article


FCA reveals concerns about commission arrangements in the motor finance sector

The Financial Conduct Authority (FCA) has revealed its “serious concerns” over the commission arrangements which exist in the motor finance sector.

One of the main issues is that many brokers have discretion to set the interest rate on a finance agreement. Under Difference in Charges arrangements, the broker commission is linked to the interest rate, which could lead to a conflict of interest for lenders, who would then have an incentive to seek out the deals paying the highest commission.

The regulator has estimated that, as a result of the higher interest payments, consumers could be paying an extra £300 million per year. It has come to this conclusion after reviewing a sample of 1,000 finance agreements from 20 lenders who collectively represent around 60% of the market.

The FCA will now consider whether to intervene in this sector – they could for example introduce new rules, ban the payment of certain types of commission or impose limits on the ability of brokers to set interest rates. In any case, the FCA’s report points out that, even under existing rules, the onus is on motor finance lenders to show that any differences in commission rates are justified, based on the work involved for the broker.

The regulator has also said it is concerned about some other practices within the motor finance sector, including:

  • Inadequate assessments of creditworthiness and affordability. The FCA says it has observed that, whilst arrears and default rates remain relatively low, there has been an increase in this regard, particularly for higher credit risk consumers. This increase in arrears and default rates would not normally have been expected to occur during the period of relatively benign credit and macro-economic conditions we have experienced recently
  • Failing to disclose enough information to allow customers to make a fully informed choice on whether to proceed with a particular finance agreement

Existing FCA rules require that pre-contract disclosure must include key details of the credit and its cost, including the total amount payable, the interest rate, APR, default charges and any other costs. In the case of hire purchase agreements, firms must also disclose the cost of acquiring ownership of the vehicle at the end of the agreement, and the cash price of the vehicle.

Current rules also state that brokers must prominently disclose the amount of commission if knowledge of the existence or amount of the commission could affect the broker’s impartiality in recommending a particular product; or have a material impact on the customer’s decision when choosing a finance agreement.

The regulator’s review of the sector included: a survey of 20 motor finance providers, an analysis of loan data from a larger number of firms and a mystery shopping exercise.

Jonathan Davidson, Executive Director of Supervision – Retail and Authorisations at the FCA, said:

“We found that some motor dealers are overcharging unsuspecting customers over a thousand pounds in interest charges in order to obtain bigger commission payouts for themselves. We estimate this could be costing consumers £300 million annually. This is unacceptable and we will act to address harm caused by this business model.

“We also have concerns that firms may be failing to meet their existing obligations in relation to pre-contract disclosure and explanations, and affordability assessments.  This is simply not good enough and we expect firms to review their operations to address our concerns.”

The information shown in this article was correct at the time of publication. Articles are not routinely reviewed and as such are not updated. Please be aware the facts, circumstances or legal position may change after publication of the article


FCA confirms rent to own price cap, and suggests guarantor loans could be next

The Financial Conduct Authority (FCA) has confirmed it will introduce a price cap in the rent-to-own (RTO) sector with effect from April 1 2019.

The final rules are essentially the same as those outlined in the consultation paper in 2018. The FCA is taking action because it believes that many customers of RTO firms are vulnerable – only one-third of them are in employment – and because it is concerned that many customers are paying up to four times the retail prices of the goods.

The new rules that RTO firms need to follow include:

  • Total credit charges cannot be more than the cost of the product
  • The cost of products must be ‘benchmarked’ against the prices charged by three other retailers. Only one of the three can be a catalogue credit retailer, and the other two must be mainstream retailers. Firms will be unable to charge more than the median average of the prices offered by these retailers (if one of the three was a catalogue credit firm), or the highest of the three prices (if none of the three was a catalogue credit firm)
  • Customers cannot be charged higher prices for insurance premiums, or for going into arrears, purely with the aim of recouping reductions in revenue caused by the price cap. If a firm wants to raise its charges, it would need to be able to prove that this is a legitimate business need

These rules must be applied from April 1 for all products introduced to the market for the first time. For existing products, they will apply from the earlier of the date on which prices are raised, and July 1. Micro-enterprises (firms which employ fewer than 10 people and have a turnover or annual balance sheet that does not exceed €2 million) will be given special permission to delay introduction of the rules until the earliest of the date prices are raised, and October 1.

The level of the cap, and its effectiveness, will be reviewed after 12 months.

The market is dominated by a handful of major players, and three of the largest market participants have been forced to pay almost £16 million in compensation to 340,000 consumers. Ways in which the FCA believed the firms were failing their customers included:

  • Not carrying out adequate affordability checks
  • Some customers were charged late fees for arrears on their insurance contracts, even though this was contrary to the firm’s own policy
  • Some customers were required to pay for insurance before receiving any goods
  • Other customers did not receive a refund of their first payment where their agreement with the firm was cancelled before the goods were delivered

Christopher Woolard, Executive Director of Strategy and Competition at the FCA said:

“The actions we are taking today build on our wider work on high-cost credit and will save some of the most vulnerable consumers in the UK millions of pounds. This price cap has been designed to target some of the most excessive prices in the rent-to-own market. The measures come into force from 1 April and we will be keeping a close watch on firms’ compliance. We will review the impact of the price cap in 2020 and if further work is needed to protect these customers we are prepared to intervene again.”

While there is no direct mention of any other forms of credit in the official FCA press release, Mr Woolard has been speaking on the record to the national press. He told The Times that he was not sure why guarantor loans had such high interest rates when guarantors were meant to have strong credit records. His comments may mean that guarantor loans are next in line for price capping.

The information shown in this article was correct at the time of publication. Articles are not routinely reviewed and as such are not updated. Please be aware the facts, circumstances or legal position may change after publication of the article


ICO bans director for eight years for nuisance calls

The Information Commissioner’s Office (ICO) is yet to use its newly acquired power of fining a company director over nuisance marketing. However, there can still be personal consequences for directors when firms breach data protection law, and the ICO has recently announced that one such individual has been disqualified from acting as a director for a period of eight years, after the ICO referred details of his misdemeanours to the Insolvency Service.

The director in question was a senior individual at two firms that had previously been fined £350,000 each back in 2017 for making nuisance calls concerning payment protection insurance claims. When these fines were imposed, he applied to Companies House to have the firms wound up in an attempt to avoid paying the fines, however he was not successful in doing so as the ICO intervened to stop him from doing so.

The data protection regulator described the director as “one of the worst offenders the ICO has seen since the laws were introduced 15 years ago.” Together, the two firms were fined for making more than 200 million automated marketing calls.

This latest action means that 16 company directors have now been disqualified as a result of nuisance calls made by their firms. The total length of these disqualifications has also now topped 100 years.

Andy Curry, ICO Investigations Group Manager, said:

”Nuisance calls are a blight on people’s lives. We are partnering with the Insolvency Service to disrupt and obstruct unscrupulous operators like [name of director] who cause misery and distress to their victims.

“Directors of rogue companies like him who try to shut down their businesses to avoid paying our fine and carry on their illegal activities under another company name should not expect to get away with it.

“This is typical of the type of case we refer to the Insolvency Service, where companies are making a high volume of calls, texts or emails and where there is a high risk they will continue to flout the law even after we have taken action.”

David Brooks, Chief Investigator for the Insolvency Service, said:

“Nuisance marketing communications not only flagrantly breach regulations but cause untold anguish and grief for a substantial number of people.

“One hundred years’ worth of bans is a significant landmark and we will continue to work closely with the ICO so that we can prevent rogue company directors from causing any more harm.”

Unsolicited marketing calls cannot be made to anyone who has registered with the Telephone Preference Service, or who has informed the firm that they do not wish to be contacted in this way. Where the calls are automated, as in this case, all recipients should have given consent in advance to receiving them.

The information shown in this article was correct at the time of publication. Articles are not routinely reviewed and as such are not updated. Please be aware the facts, circumstances or legal position may change after publication of the article

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