Guide for consumer credit firms

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1 Being regulated by the Financial Conduct Authority Guide for consumer credit firms

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3 Being regulated by the Financial Conduct Authority Guide for consumer credit firms Contents P5 Background on FCA rules and guidance P11 Getting authorised P22 Being supervised by the FCA P31 Enforcement Financial Conduct Authority 3

4 Introduction This guide is for consumer credit firms in particular those that are new to being regulated by us. It provides a high-level summary of how we will regulate you. It is intended to include a summary of the regulatory requirements and is not a substitute for reading the applicable rules and guidance. In the event that there are differences between this guide and the applicable rules and guidance, the rules and guidance take precedence. The foundation for our approach to regulating firms are the objectives given to us by Parliament. We have an overarching strategic objective to ensure that the relevant markets function well. This is embodied in our three operational objectives: to secure an appropriate degree of protection for consumers to protect and enhance the integrity of the UK financial system to promote effective competition in the interests of consumers. In our relationship with you we want to ensure that fair treatment of consumers is at the heart of your business, and that you do not adversely affect the integrity and competition in financial markets. 4 Financial Conduct Authority

5 Background on FCA rules and guidance Firms carrying out regulated 1 consumer credit activities must follow certain rules about how they manage their businesses and treat their customers. These include rules made by us, which are in our Handbook, and the requirements of the Consumer Credit Act (CCA) and secondary legislation. We have the power to make rules that are legally binding on firms. If you breach our rules we can take enforcement action and you may be subject to a claim for redress from a customer. We can also issue guidance on our rules. Guidance indicates possible ways for a firm to comply with a rule, recommends a particular course of action, or gives information about how we will interpret a rule in certain circumstances. Guidance is not binding and failing to follow it does not necessarily mean that a rule has been breached. We set out our rules and guidance in our Handbook. In the Handbook text, words in italics are defined in a glossary. More information on the Handbook is in the reader s guide. Firms will also need to follow the applicable provisions of the CCA and secondary legislation that remain in force. These include the rules on pre-contract credit information, credit agreements, copy documents, statements and notices, and termination and early settlement. Firms will also be subject to other consumer protection legislation including the Consumer Protection from Unfair Trading Regulations and the Unfair Terms in Consumer Contracts Regulations. We have the power to make rules that are legally binding on firms. If you breach our rules we can take enforcement action and you may be subject to a claim for redress from a customer. 1 Our perimeter guidance manual gives guidance on which activities require FCA authorisation. Financial Conduct Authority 5

6 However, a number of CCA requirements have been moved into our Handbook, along with key elements of guidance issued by the Office of Fair Trading (OFT). There are also some new rules. Conduct of business Our detailed conduct standards for firms carrying out consumer credit activities are set out in our Consumer Credit Sourcebook (known as CONC). The Principles for Businesses are the fundamental obligations that firms must comply with at all times. Firms have a responsibility to ensure their employees and agents comply with CONC and take reasonable steps to ensure that other persons acting on their behalf also comply (CONC R). The general application of CONC is set out in Chapter 1. If there are variations to a section or rule for different activities it will be explained in CONC. The fact that a firm may have a limited permission (see authorisation section) does not affect how CONC applies. In addition, there are high-level FCA standards including: Principles for Businesses The Principles for Businesses (PRIN) are the fundamental obligations that firms must comply with at all times. They apply to all authorised firms and those with interim permission. We can take enforcement action if they are breached. A principle that we often highlight to firms is principle 6 A firm must pay due regard to the interests of its customers and treat them fairly. We often refer to this as our treating customers fairly principle, or TCF. This principle sits behind many of our detailed rules and is core to what we expect of your firm. We have set out six consumer outcomes to help explain what we want this principle to achieve: 6 Financial Conduct Authority

7 Outcome 1: Consumers can be confident that they are dealing with firms where the fair treatment of customers is central to the corporate culture. Outcome 2: Products and services marketed and sold in the retail market are designed to meet the needs of identified consumer groups and are targeted accordingly. Outcome 3: Consumers are provided with clear information and are kept appropriately informed before, during and after the point of sale. Outcome 4: Where consumers receive advice, the advice is suitable and takes account of their circumstances. Outcome 5: Consumers are provided with products that perform as firms have led them to expect, and the associated service is of an acceptable standard and as they have been led to expect. Outcome 6: Consumers do not face unreasonable post-sale barriers imposed by firms to change product, switch provider, submit a claim or make a complaint. Our Handbook (CONC G) also includes examples of behaviour that is likely to contravene the treating customers fairly principle: targeting customers with regulated credit agreements which are unsuitable for them, by virtue of their indebtedness, poor credit history, age, health, disability or any other reason; subjecting customers to high-pressure selling, aggressive or oppressive behaviour, or unfair coercion; not allowing customers who are unable to make payments a reasonable time and opportunity to meet repayments; taking steps to repossess a customer s home, other than as a last resort. Financial Conduct Authority 7

8 Senior management arrangements and systems and controls Principle 3 states A firm must take reasonable care to organise and control its affairs responsibly and effectively, with adequate risk management systems. The systems and controls rules describe what we will expect, in practice, from firms when complying with Principle 3. They are found in the Senior Management Arrangements, Systems and Controls module of the Handbook (known as SYSC). Broadly, the rules cover: robust governance arrangements skills, knowledge and expertise of staff outsourcing responsibilities Principle 3 states A firm must take reasonable care to organise and control its affairs responsibly and effectively, with adequate risk management systems. 8 Financial Conduct Authority

9 record-keeping conflicts of interest. The types of systems and controls a firm must have in place reflect the nature, scale and complexity of the firm s business and the risk the activity may pose to consumers. For example, we would not expect a small lender dealing with a small number of customers to have the same scale of systems and controls as a major lender or a large debt collection business. You should refer to SYSC 1 to check how the requirements apply to your firm. A core set of rules apply to all firms, with further rules applying depending on the activity undertaken. General provisions The general provisions (in GEN) contain a number of rules relating to mainly administrative duties. They include: a ban on firms claiming or implying that their business is endorsed by the FCA and situations when a firm cannot comply with our rules in an emergency how to interpret our Handbook of rules and guidance how firms authorised by us must describe their regulatory status: status disclosure restrictions on using our name or logo a ban on insurance against financial penalties imposed on a firm s employees, directors or partners. Complaints The Disputes Resolution: Complaints (known as DISP) section of our Handbook sets out the detailed requirements for handling Financial Conduct Authority 9

10 complaints and the Financial Ombudsman Service arrangements. Customers of consumer credit firms will continue to have access to the Financial Ombudsman Service, including for business carried on before the transfer of regulation to the FCA. Firms will also have to comply with our rules to record, report and, where appropriate, publish a relatively small amount of complaints information. Prudential and client money rules For debt management firms, we have rules requiring firms to hold certain levels of capital (prudential rules) and rules on holding their customer s money (client money rules). These are set out in CONC 10 and CASS 11 (part of the Client assets module of our Handbook). Customers of consumer credit firms will continue to have access to the Financial Ombudsman Service, including for business carried on before the transfer of regulation to the FCA. Transition period Most of the rules in CONC came into effect on 1 April; however, the enforcement of some is subject to a six-month transitional period. This transition period does not affect the substance of the conduct standards in place from 1 April This means that if firms can prove that they comply with the corresponding provision or guidance in specified OFT guidance, CCA provisions or CCA secondary legislation that is substantially similar in purpose and effect to the relevant provision in CONC, then they are deemed to comply with that provision. Non-compliance is not an option at any time. We can and will enforce rule breaches from 1 April 2014 where appropriate (see page 31 for details on enforcement). 10 Financial Conduct Authority

11 Getting authorised This section looks at the FCA authorisation process and how it will work in practice for your firm. On 1 April 2014 we started accepting applications from new consumer credit firms for FCA authorisation. We will give firms with interim permission set application periods to send in their application. We have to do this in stages to manage the thousands of applications that we are expecting. We have written to firms to tell them when they should apply. Authorisation is our equivalent of the OFT consumer credit licensing regime. Firms and certain individuals that want to carry on regulated activities must apply for authorisation (unless they are exempt or an appointed representative). Our approach will largely be based on whether you apply for full permission or for limited permission. Broadly, this means that full permission firms will be subject to more checks and have more conditions to meet at authorisation and beyond. Financial Conduct Authority 11

12 The broad categories are 2 : Limited permission activities Higher-risk activities Consumer credit lending (where the main business is selling goods and non-financial services and there is no interest or charges) this excludes hire-purchase and conditional sale Consumer hire Credit broking (where the main business is selling goods or nonfinancial services and broking is a secondary activity) Credit broking in relation to the Green Deal Not-for-profit debt counselling and debt adjusting Not-for-profit credit information services Local authorities (lending within the scope of the Consumer Credit Directive) Consumer credit lending (including personal loans, credit card lending, overdrafts, pawnbroking, hire-purchase, conditional sale, etc) Credit broking (including introducing consumers to lenders as a main business activity) Debt adjusting Debt counselling Debt collection Debt administration Providing credit information services Providing credit reference agency services Peer-to-peer lending Our aim is to ensure that firms wanting to offer consumer credit products and services are well run by fit and proper persons and, have appropriate business models. 2 The contents of this table are not a comprehensive list of the regulated activities. To analyse whether activities are lower or higher risk, firms should review the legislation or take legal advice. 12 Financial Conduct Authority

13 All firms will have to demonstrate that they meet our minimum standards to become authorised known as our threshold conditions. Some threshold conditions are modified for limited permission firms. The threshold conditions are: Our approach Threshold Condition Legal status Firms must have a certain legal status to carry out certain regulated activities. (Does not apply to FCA-only regulated firms i.e. those that are not also regulated by the Prudential Regulation Authority) Higher-risk firms applying for full permission Check the firm is registered with Companies House with the appropriate legal status and review appropriateness of firm name. Lower-risk firms applying for limited permission Not applicable. Location of offices If the firm is a body corporate constituted under UK law, the firm s mind and management, e.g. directors, compliance function, audit function, should be in the UK. Validate the main place of business and check that the mind and management of the firm is in the UK. Effective supervision A firm must be capable of being effectively supervised by the FCA, including the complexity of its regulated activities, products and how the business is organised. In most cases, firms should have a UK establishment. This will be considered on a case-by-case basis. Review the business model and structure chart of the firm or group, including owners and controllers. Complete automated checks on key controllers. Only complex ownership structures to be investigated. Financial Conduct Authority 13

14 Threshold Condition Higher-risk firms applying for full permission Our approach Lower-risk firms applying for limited permission Appropriate resources The firm must demonstrate appropriate financial resources, nature and scale of the business and skills and experience of those managing the firm s affairs. Suitability The firm must demonstrate the competence and ability of management, and that the firm s affairs are conducted in an appropriate manner regarding the interests of consumers and the integrity of the UK financial system. Business model The firm s strategy for doing business must be suitable for its regulated activities and have regard to the FCA s operational objectives. Assess quality and quantity of resources, including financial, management, staff and systems and controls. Review criminal records and other internal intelligence and in some cases consult with trading standards. Firms to submit detailed business plan, which is assessed against market norms. Assess limited basic financial information provided. Firms self-certify factual matters that show they have appropriate management, staff and controls, and that they have sufficient capital to meet debts as they fall due. Where appropriate, self-certification and automated intelligence checks. Case worker reviews where issues are flagged and on a sample basis. Not applicable Once your firm is authorised, you will also have to meet requirements on: approved persons controllers 14 Financial Conduct Authority

15 regulatory reporting complaints reporting and publication For debt management firms, there will be additional requirements relating to prudential standards and client assets. Prudential standards will also apply to peer-topeer lending platforms, as set out in our policy statement on crowd funding. Consumer credit firms will go through a similar route to getting authorised as other financial services firms. Getting ready for FCA authorisation Consumer credit firms will go through a similar route to getting authorised as other financial services firms. You will need to complete a set of application forms that are relevant to your business type. This will include details of who works at the firm, your approved persons, your controllers, your business model and key financial information. We will ask you to demonstrate how your firm is set up to meet our requirements. This includes your business plan, setting out your business aims and objectives and how you will organise your resources to achieve them. If you don t have a business plan, or haven t revised your current one for some time, now is the time to start working on this. Once firms can apply, what do you need to do? You will need to complete your application form on our online system. We will assess your application to see if you meet the standards we require and will make a decision within: Financial Conduct Authority 15

16 six months of receiving your complete application, or the earlier of 12 months of receiving an incomplete application, or six months from when an incomplete application becomes complete. We will also try to meet any relevant dates you tell us about. If your application is incomplete or needs further explanation, we will ask you to clarify it. For example, where there are inconsistent or missing answers. If you apply for full permission you will need to give us more detail on your business than if you apply for limited permission. Our authorisation team will assess your application in a way that is proportionate to the size and nature of your credit business and the risks to consumers. We may have more contact with you if you are applying for full permission and less if you are applying for limited permission. What happens next? Our authorisation web pages (www.fca.org.uk/cc-authorisation) give more information on getting authorised. This includes the application periods when we will ask certain categories of firm to apply. Our authorisation team will assess your application in a way that is proportionate to the size and nature of your credit business and the risks to consumers. 16 Financial Conduct Authority

17 If you have registered for interim permission, you can continue to trade under your interim permission until your application for authorisation has either been granted or rejected. If you do not apply within your allocated application period then your interim permission will lapse. Our website also includes our online application packs so you can see what we will ask you to include when you apply. If you did not have a consumer credit licence and interim permission by 31 March 2014, you can apply to us for authorisation at any point from 1 April 2014 but you cannot carry out any credit-related regulated activities, for which you require authorisation, until we approve your application. Fees We are funded by the firms we regulate through fees. We aim to cover our costs in a way that is as fair and efficient as possible and we consult on our fees each year. Firms have to pay a fee when they apply for authorisation and then annual fees for every year they are authorised. The fee that a firm has to pay will be proportionate to the size of the firm s business and the type of authorisation. Firms with limited permission will have lower fees than those of higher-risk firms that need full permission. The application fees are set out on our website and we are consulting on our proposals for the annual fees. Financial Conduct Authority 17

18 Approved persons An approved person is an individual we approve to perform one or more activities on behalf of an authorised firm. These are activities that we refer to as controlled functions. At least one individual in all consumer credit firms (except most not-for-profit debt advice bodies and some sole traders) must be approved by us. This individual will be the approved person for your firm. What we look for We can approve an individual only where we are satisfied that they are fit and proper to perform the controlled function(s) they apply for. When considering a candidate s fitness and propriety, we look at: honesty (including being open regarding any self-disclosure) integrity and reputation competence and capability financial soundness. Being an approved person brings with it several important responsibilities. These include a duty to be aware of and comply with our regulatory requirements and understand how they apply to each controlled function. What approved persons need to do Being an approved person brings with it several important responsibilities. These include a duty to be aware of and comply with our regulatory requirements and understand how they apply to each controlled function. Specifically, approved persons must: Meet and comply on an ongoing basis with our Fit and Proper test for Approved Persons. Comply with the Statements of Principle and the Code of Practice for Approved Persons. These describe the conduct that we require and expect of the individuals we approve. 18 Financial Conduct Authority

19 Report to the firm and to us any matter that may affect the firm s ongoing fitness and propriety. Controlled functions 12 controlled functions apply to consumer credit firms depending on their business and legal status. The number of roles your staff will need to be approved for will depend on the type of credit activities you intend to carry out, the legal entity of your business and the permissions you require. Firms with limited permission will normally only require one approved person. (See table 1 on page 34 for the list of controlled functions.) You can appoint one individual to be an approved person for more than one controlled function in your firm, provided you can demonstrate that individual has the ability to manage multiple roles. We will consider the application in the context of the scale of your firm and the activities you plan to undertake. An individual can be an approved person for more than one firm, provided that each takes appropriate responsibility for ensuring the individual manages the risks involved. Controlled functions need to be carried out by approved persons who are closely involved in the running of the firm. It is unlikely you will be able to outsource these roles and still meet the standards we expect, although we will assess this on a case-by-case basis. However, you can outsource resources for guidance and support for approved persons. There is more information about approved persons on our website. Principals and appointed representatives An appointed representative is a firm or individual that carries on regulated activities under the supervision of another firm that we directly authorise. Under this arrangement, if you are the directly authorised firm (known as the principal ) you will be responsible for ensuring your appointed representative meets our requirements. The appointed representative has no direct relationship with us. Financial Conduct Authority 19

20 You will not be able to have appointed representatives for consumer credit while you have interim permission you must wait until we authorise you. There must be a written contract between you as the principal and your appointed representative that documents the arrangement between you. As principal, you will take full responsibility for ensuring your appointed representatives comply with our rules. Before entering an agreement with an appointed representative, you will need to carry out sufficient checks on the firm or individual. These are to ensure that the appointed representative is financially stable and that they have achieved, and are maintaining, a satisfactory level of competence. As a principal you must notify us of any firm you appoint as an appointed representative. You must also where applicable approve individuals carrying out a controlled function within an appointed representative firm, before the firm carries on regulated activities. Once you agree to be a principal, you are accountable for a range of activities that your appointed representatives carry out, including: the products they sell and arrange any advice they give to customers ensuring they deliver the six treating customers fairly outcomes in the same way a directly authorised firm would. If you want more information, please see our factsheet for firms with appointed representatives on our website. Appointed representatives responsibilities If you are an appointed representative you will need to understand and comply with the regulatory requirements for the business you conduct. 20 Financial Conduct Authority

21 You can become an appointed representative for credit-related regulated activity unless you are: a credit reference agency; or a lender that applies interest or charges. As an appointed representative you must allow the principal access to your staff, premises and records so your principal can carry out the necessary oversight and monitoring of your business. Unauthorised firms. We actively police firms offering regulated financial services in the UK that are not authorised by the FCA. We have a dedicated department tackling unauthorised business activity and take steps to actively warn consumers about these firms. Unauthorised businesses pose a significant risk to consumers and distort the market for firms that are working hard to do the right thing and remain compliant with regulatory requirements. We take action against firms and individuals that carry on regulated activities in the UK without FCA authorisation. We use a wide range of enforcement powers including criminal prosecutions, action through the civil courts (injunctions, asset freezes, winding up, bankruptcy) and publishing warnings against specific firms and individuals. Firms or individuals that carry on unauthorised business do so in breach of section 19 of the Financial Services and Markets Act 2000 (FSMA). This is a criminal offence carrying a maximum prison sentence of two years, a fine, or both. Even if authorised, firms must ensure that their authorisation includes permission for all regulated activities carried on by them. Otherwise, firms may also commit an offence under section 23 of FSMA. You can report an unauthorised consumer credit firm to us by calling our Contact Centre on or using our online reporting form. We have a register of the firms we regulate on on our website. Financial Conduct Authority 21

22 Being supervised by the FCA We take an active approach to monitoring and engaging with the firms we regulate. We call the way we monitor the market and work with individual firms supervision. This section looks at the FCA supervision model, and how it will work in practice with your firm. All firms that we regulate have to meet the standards set out in the relevant rules and give us information so we can monitor their business. Our regulation will be proportionate, and we will concentrate our resources on the greatest potential risks to our objectives. Firms with full permission can expect a more intensive supervisory approach than firms with limited permission. 22 Financial Conduct Authority

23 We aim to protect consumers and ensure market integrity. We want to know how your business is really run, to find where problems flow from and address them at the source. We are interested in your financial health and how you aim to make money, both now and in the future, and how your culture and strategies support fairness for consumers and markets. We will examine the risks your business poses in these areas, and how you respond to these risks. Our model supports the promotion of effective competition in the interests of consumers. If we find firms, groups, products or behaviours that could have an adverse effect on competition, we will consider the most appropriate action to take. Supervision in the interim permission regime During the period from 1 April 2014 until we authorise your firm our supervision will be a combination of reactive work and targeted work in areas of greater risk. We will focus on the way that firms treat their customers by: visiting the largest firms within certain sub-sectors, including credit cards, debt collection, debt management, home collected credit, high-cost short-term credit (including payday lenders) and pawnbrokers responding to issues in individual firms carrying out thematic work to look in depth at issues that run across several firms (see pillar 3 below). As we do so, we may find issues that we need to address and we will take appropriate action where necessary. We will also monitor financial promotions and review relevant contract terms. Where we identify harm to consumers through this work we will engage directly with individual firms and communicate with the industry more widely. This is so other firms can benefit from our findings. Financial Conduct Authority 23

24 We may make requests to individual firms for information for a special purpose, but formal regular reporting will not start until after a firm is authorised. If there are any significant changes within your firm before then, you will need to tell us: Use our online interim permission system to notify us a change in name, address or telephone number. Use the appropriate form annexed to Chapter 15 of the Supervision module of the Handbook (known as SUP) for other changes. Our online Q&A has more detail on when and how you to need to send us this. Your firm will experience our full supervisory approach, which we explain below, once you are authorised. At this stage we will confirm your FCA category and who your supervisory contact will be. During interim permission your supervisory contact at the FCA will be our contact centre. Contact centre staff have the expertise to deal with most issues and queries, and refer them on to the appropriate FCA specialists when necessary. Their contact details are: UK: (call rates may vary) From abroad: Firms that are already part of an FCA-authorised group will have the wider group s FCA supervisor as their contact. We will also continue to update our consumer credit website pages: You can sign up to updates on our website. During interim permission your supervisory contact at the FCA will be our contact centre. Contact centre staff have the expertise to deal with most issues and queries. Our three-pillar supervision model The way we supervise your firm will change once we have authorised you. 24 Financial Conduct Authority

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