CP 193 Professional Indemnity Insurance for personal investment firms

Transcription

1 Ms Michelle Hallett Themes Department Investment Firms Division The Financial Services Authority 25 The North Colonnade Canary Wharf London E14 5HS Direct Tel Direct Fax October 2003 Ref L/315/017 Dear Michelle, CP 193 Professional Indemnity Insurance for personal investment firms We welcome the opportunity to submit our response to CP193. For the sake of keeping this response to a readable length we will not repeat in detail our earlier comments in our submission to CP169 on the background and nature of this important issue. However, as you know from our ongoing dialogue on this issue, it remains one in which we are maintaining a close interest. In simple terms we see the main thrust of CP193 as being a positive development. We welcome your proposal for more flexible PI rules that are more in tune with the way that the PI market is now operating and the flexibilities which give IFAs the option to employ capital in lieu of shortfalls in their PI cover. Whilst, these measures should help there is continuing concern and uncertainties about the future state of the market. The severity of the situation will not be clear until the November renewal round. A key area will be the amount of extra capital required by IFAs. This will depend on the capacity and terms offered by the PI market and how these interact with your proposed rules. Our current view is that there is little in the CP to change significantly the view and terms of the PI market when dealing with IFA business in the short term. The liability market is still at a hard point in its cycle and IFAs are likely to remain an unattractive sector. For example, the fear of miss-selling reviews still persist, although we hope that the new FSA PI Forum will be one way of starting to make progress here. Clearly the impact on IFAs and their capital will take time to become apparent. However we do have some early concerns in this area, particularly to what extent the capital requirements effect the markets ability and/or desire to consolidate. However, we recognise that only time will tell how both the PI market and IFAs actually engage with the new rules. This is a key area that we think should be kept under close review. We need to ensure that there are

2 no unintended or unforeseen consequences that might have a negative impact on the orderly evolution of a depolarised market. We are concerned that the maximum permissible excess of 5k may have been set too low and at a level that is rarely available in the current market. We do not have access to the data you used to produce this model but a level of above 10k feels more in tune with what the PI market might supply at best. We also wonder if the capital calculation should be based on the IFA s highest excess alone. This would unfairly penalise a firm who has a low risk portfolio but may have sold a very small volume of a high risk product. In effect the IFA is over-reserving capital when assessed against the business as a whole. One outcome could be that the IFA seeks to have the higher risk product excluded from the PI cover and then makes up his/her own mind on the reserves required. We suspect a desire for simplicity rightly rests behind your proposal but think that this is an area that will need ongoing review. We are also concerned that senior managers of IFAs have a responsibility for deciding how to reserve for products that are excluded from their PI cover but with little guidance on what this means in practice. Exclusions are widespread in the market so this will be a common issue. In one case we are aware of a PI insurer who is excluding all group pensions business. We think that there will be a need for ongoing guidance from the FSA to help firms deal with this issue. A process similar to that employed in establishing PI waivers might be worth consideration and further debate. In summary, we are supportive of the overall direction of the proposals. We remain cautious as to how far the PI market will respond to these rules, particularly in the short term. Clearly this needs to be seen before we can assess how IFAs will manage the capital issues that could result. This is an area that we believe will need close monitoring over the first half of We would hope to see some early indications on the PI market s reaction to the rules in the October/November renewal period. We remain committed to maintaining a dialogue with you on PI as we watch to see how the market responds. We continue to stay engaged on this issue. Yours sincerely, Melanie Claisse Policy Adviser Regulation & Strategy [M:\LID\Mcla\CP193 Response.doc]

3 CP 193 Consultation Questions Q1. Do you have any comments on the thinking that underlies our revised policy? A1. See main body of letter. Q2. Do you have any comments on the scope of what a PII policy should cover: for example, our proposal to include a firm s unregulated as well as regulated business activities within the scope of it s PII policy? A2. This seems to be a sensible proposal from a risk management point of view for IFA firms. However it will increase the amount of PI cover required in a tight market. Q3. Do you agree with the levels of cover proposed for firms that fall outside the scope of the IMD? A3.Allowing lower levels of cover for non-imd firms in the short term seems sensible in view of the overall capacity shortage in the PI market. In the longer term this should be reviewed. Q4. Would it be helpful if we included some guidance in the FSA handbook on what we consider to be reasonable steps to ensure that policies provide at least equivalent levels of cover as those specified by our PII rules, regardless of he currency of denomination? A4. Yes. PI policies are annual contracts and any currency conversion mechanism needs to allow for reasonable fluctuations in exchange rates over a 1 year period to avoid IFAs having to monitor and change levels of cover too frequently. Q5. Do you think that the proposed limits for the level of aggregate PII cover strike the right balance between ensuring that firms have an adequate level of cover and not placing undue costs on firms? A5. It is impossible for us to comment on the exact level of the aggregates although the overall shape looks to be about right, particularly taking into account consolidation of smaller firms into the networks and the impact of the IMD. Q6. Do you agree that additional own funds should be held in a readily realisable form as defined in (4)G? If not how should our definition be amended? This seems sensible. We think it would be useful for you to repeat or clearly reference the own funds requirements and capital definitions that meet the requirement of being readily realisable in order to assist IFAs with the implementation of these rules.

4 Q7. Do you think the table in (12) is easy to use? If not, what improvements would you suggest? A7. The table should be easy to use for financial advisers. Q8. Do you think that the own funds required in the table in (12) E are proportionate to the risk of firms claims that may arise, whilst providing adequate protection? If not, do you think that the additional own funds requirements should be higher or lower, particularly for firms that hold an excess of more than 200,000 (For example, no less than the level of excess carried)? A8. This depends on the nature of the claims environment going forward, which is something the FSA influence, and the risk profile of individual IFA firms. The own funds limits have been set based on the average claims experience for the IFA market as a whole. However, there is no such thing as an average IFA. This approach could generate very different outcomes for individual firms. A firm with turnover between 100k and 200k and a 10k excess is required to hold extra capital of 7k. The IFA would need to find an extra 23k to manage a liability of 40k on a single case/claim, in addition to the excess and additional own funds. The same IFA, with the same overall claims liability of 40k would need to find only 3k in addition to the excess and additional own funds if the claim was made up of 3 cases. This is an area that we believe needs to be regularly reviewed to ensure the requirements keep in step with the claims environment. Q9. Even with a requirement to hold additional own funds that increases with the size of excess, do you think that we should impose limits on the maximum size of excess permissible if so, what do you think this should be based on? A10. Ultimately we believe that it is the PI Underwriters who will dictate the level of excess in the market. A maximum permissible excess within your rules might act to constrain them to a small degree, but as we have seen in the past, they do not feel obliged to offer compliant terms. The FSA controls regulatory capital requirements and heavily influences the claims environment. We do not have a view at this stage on what a suitable maximum excess might be. Q10. Do you support our proposal to permit firms to have group policies? If so, do you also support our proposal to permit both connected and unconnected firms to take out group or combined policies? In addition, do you agree with the conditions we have attached to those firms that participate in group or combined policies? A10. We think this has some merit in theory, particularly if it enables groups of IFAs to make savings on their premiums.

5 The practicalities of such an arrangement would need careful consideration before a view could be reached on the viability of such an undertaking. We assume that this would not be an option for small groups of smaller IFAs, as the effort in establishing and managing such an arrangement and level of risk would be disproportionate to the benefits. Risk purchasing groups also require firms to bear the financial consequences of potential liabilities of other firms in the group. Entrance to a group would therefore have to be tightly controlled. In some ways the Magian initiative shows how this might be done with detailed up-front underwriting to protect the risk pool. The pool would therefore probably need scale to make it worthwhile. We also have some concerns about how such an arrangement might co-exist and interact with commercial offerings already in the market, such as Magian or through some of the network PI arrangements. We would welcome further insight into the FSA s thinking on this subject. This might be a good issue to debate at a future forum meeting since it might ease the market. Q11. Do you think that we should provide guidance to firms on how they should assess the amount of own funds to be held to cover potential liabilities for any excluded business or activity? A11. Yes, we think that firms would welcome guidance in this area. Q12. Do you think that the proposal to exempt members of the same group as a bank, building society or insurer, if a comparable guarantee is n place, is sufficient? or, should it be extended to include? A12. We think consideration should be given to extend the exemption where the comparable guarantee has an authorised entity locked somewhere within the arrangement. There should be a mechanism for considering one-off applications for exemptions to reflect the likely changing dynamics in industry structures and ownership in the future. Q13. Do you think that the new notification requirements we are proposing are reasonable? A13. Yes. Q14. Do you think that our rules should retain a specific requirement for firms to have cover for legal defence costs and/or Ombudsman awards.? A14. It seems sensible to include this for the time being. Q15. Do you think that our proposed rule changes will make it easier for firms to obtain compliant PI cover?

6 A15. The incidence of non-compliant PI cover should reduce somewhat, although we still have concerns over the overall capacity in the market for the time being. Overall we assess the changes as being relatively neutral from a market view-point. We are concerned with the requirement for PI cover to be fully retroactive. Whilst this is clearly desirable in theory, in practice we think this will be difficult for a large number of IFAs to achieve. This is because most IFAs change insurer on a regular basis and some have had periods without cover due to the shortage of market capacity. The effect of this rule could be to limit competition and discourage shopping around in the market. Q16. Do you have any other comments on our proposed rule amendments? A16. Not at this stage. Q17. Do you have any comments on our cost benefit analysis? A17. It is difficult to make a firm judgement without seeing the source data and calculations used in the CBA. Our general view is that it is in the right order of magnitude, albeit slightly on the low side when it comes to costs. The CBA needs to be reviewed once you have actual experience of how the market adopts the new rules. Q18. Do you have any comments on our compatibility statement? A18. No.