MAT s vision is to help people across the UK to tackle their debts and manage their money wisely.

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1 Money Advice Trust response to the HM Treasury and Department for Business, Innovation & Skills Consultation on A new approach to financial regulation: transferring consumer credit regulation to the Financial Conduct Authority 1 About the Money Advice Trust The Money Advice Trust (MAT) is a charity formed in 1991 to increase the quality and availability of money advice in the UK. We work with the UK s leading money advice agencies, government and the private sector to increase the availability of money advice, improve its quality, and enhance the efficiency and effectiveness of its delivery. MAT s vision is to help people across the UK to tackle their debts and manage their money wisely. MAT aims to support individuals and micro-businesses in the UK through their debts and into financial health, and to improve the capability, quality and efficient delivery of free independent money advice by: Delivering advice to the public via National Debtline, Business Debtline and My Money Steps; Supporting advisers; Making the case for free money advice; Coordinating initiatives to improve money advice; Sharing research and information to shape and influence policy. Please note that we consent to public disclosure of this response.

2 2 Introductory Money Advice Trust comment We are extremely pleased to see the advent of the Financial Conduct Authority and its enhanced powers of consumer protection and product intervention in particular. Overall, we welcome the proposals in the consultation paper. Above all, we welcome the decision to carry forward most of the CCA provisions, particularly those that provide enhanced consumer protections. We also welcome the intention to retain OFT guidance and translate the guidance into FCA rules. We have outlined any concerns in our response below. 3 Comments on individual issues Conduct requirements and rules 1 What are your views on the Government s proposal to carry forward CCA conduct requirements which cannot be easily replicated in FCA rules? Do you agree with the Government s intention to require the FCA to review these retained CCA provisions, with a view to moving to rulesbased alternatives wherever possible? We support the proposal to carry forward the CCA conduct requirements that cannot easily be replicated in FCA rules. Whilst we welcome the plans to review the CCA conduct requirements by 2019, whether these provisions will be suitable for replacement by rules-based consumer protections will depend upon the implications for consumer protection. We are pleased to see the stated intention to consult with stakeholders to ensure that any alternatives developed will offer strong protection for consumers. We strongly support the retention of OFT guidance and the plans to replicate the OFT guidance in both rules and guidance. We consider the detailed guidance produced by the OFT in relation to irresponsible lending, debt collection and debt management, in particular, to be invaluable tools in dealing with consumer detriment. We agree that to set these out in rules will allow greater flexibility but also allow for greater powers of enforcement. We have some concerns with the plans to exempt debt collection and debt administration from the planned financial promotions regime. Whilst we appreciate that promotions advertising such services are generally targeted at lenders rather than consumers, this will not apply in the case of small businesses which may need the services of a debt collection agent to pursue a supplier and other debtors of the business. We are also not convinced that credit information and credit reference services should not be controlled promotion activities. We have seen many cases over the years of National Debtline clients being persuaded by the dubious advertisements and claims made by credit repair companies, to

3 believe that their county court judgments can be wiped out in a return for a fee, and so on. We would suggest that the Advertising Standards Authority has insufficient powers or relevant experience in this area to provide an effective enforcement regime. We feel strongly that these areas should be kept within the scope of the FCA promotions regime and that consumer detriment will ensue, if this is not addressed. 2 How, if at all, do you think industry codes can complement FCA conduct regulation? We have seen over the years that industry codes can work for consumers because they can be more agile in their ability to respond to evidence of consumer detriment and can be amended faster than legislation and statutory guidance. This is particularly the case with the Lending Code operated by the Lending Standards Board which has worked well over the years. We welcome the FCA commitment to consider incorporating consumer protections and standards from industry codes into its rulebook and associated guidance. We particular welcome the priority given to the payday lending sector as an example of an area at greatest risk of consumer detriment. We would also welcome the introduction of some consistency in the language used by codes so that terms such as we will carry out an affordability check or sustainable mean the same thing in code A as they mean in code B. We consider that FCA rules that are binding upon a whole market or industry to be generally an improvement on a voluntary code that, in many cases, will only bind members of a trade body. In our experience the voluntary nature of such codes makes it very difficult to enforce as this depends upon the willingness of a trade body to take enforcement action against its own members. The consequence of which, can frequently be seen to be the company withdrawing from trade body membership altogether. The enforcement tools held by trade bodies are generally minimal and the consequences of non-compliance for the company equally minimal. If any codes remain outside FCA rules there could be a requirement to gain FCA approval, and for the provider to publish detailed data on performance against the code. Authorisation 3 What are your views on the Government s proposals for the two tier authorisation regime? Is the scope of the limited permission regime right? We welcome the proposals for the new authorisation regime which we hope will deliver a more effective regulatory regime for consumer credit. We particularly welcome the tougher threshold conditions and the additional powers to remove or vary permissions with immediate effect.

4 It seems to us that a bespoke tiered model designed to fit the consumer credit sector is therefore appropriate. We particularly note that the Financial Services Act 2012 has amended FSMA to provide that it will be a criminal offence where an authorised person engages in lending or debt collecting without the appropriate category of permission. We hope that this will have the desired effect of helping to protect consumers from illegal lenders or debt collectors operating under the guise of a lower-risk activity. The proposal to require debt management firms to comply with minimum capital requirements is particularly welcome. We have seen too many instances of client money disappearing when a debt management company collapses or is closed down due to alleged fraudulent activity such as in the recent case of Debt Help Direct. We would, however, suggest that the capital requirements should be brought in immediately and not wait for the full permissions regime in Any delay in implementing these measures adds to the risk of further consumer detriment. With regard to the limited permission regime, for firms that are deemed to be lower risk, this seems to be a sensible approach. From the perspective of a free-to-client debt advice provider, we would agree that the limited permission authorisation should apply to not-for-profit debt advice providers. There appears to be little evidence of consumer detriment across the sector and it would appear to be a proportionate response that mirrors the approach taken by the OFT to lower risk categories of licence holder. We also feel it is important to ensure that regulation of free-to-client advice providers is proportionate and does not lead there to be any possibility of feecharging debt management providers arguing that they are providing a better regulated service. We believe it should be clear that higher regulation of debt management companies is required because they have been repeatedly shown to be higher risk and to cause consumer detriment through bad practice. Perhaps a new title for the limited permissions regime might assist with resolving this issue as this title can give the impression that firms in that category have had their permissions restricted in some way. Perhaps higherrisk and lower-risk permissions might be appropriate. Alternatively, a third tier for free-to-client advice providers could be considered to make the position more clear. We would query the category that allows debt counselling to be lower risk when carried on as an ancillary activity by a person already in the lower risk category. We cannot envisage when it would be appropriate for anyone in the list such as a secondary broker or consumer hire company to provide debt advice and did not feel reassured by the car dealership example provided in paragraph 3.10.

5 We agree that if a firm carries out other credit activities not covered in the list as well, that it should be subject to the core authorisation regime instead. We have some concerns about the plans to include secondary credit brokerage by sellers of goods and non-financial services in the limited permissions regime. It would appear to us that businesses such as car dealerships are in a fairly powerful position to influence a consumer who wishes to buy a car on credit. We are concerned that such companies could influence consumers into taking out unsuitable, high-interest credit products where the company has a financial arrangement with that credit provider. We suggest that the FCA checks with consumer bodies as to whether such arrangements are subject to evidence of detriment and consumer complaint before making a final decision on regulation of this area. Also, we wonder how the FCA intends to monitor for any unintended consequences of the limited permissions regime? For example, one possible outcome could be a move away from hire-purchase towards hire businesses instead. 4 What are your views on the proposed changes to the appointed representatives regime? The workings of the appointed representatives regime are not an area that we are particularly familiar with. We would urge the FCA to closely monitor the impact of the proposed changes to ensure that no unexpected consumer detriment is created by the implementation of the plans. We appreciate that this option is only available to companies subject to the limited permission regime, but it is unclear if this model will ensure adequate protections for consumers in practice. 5 What are your views on the proposed approach for dealing with those currently covered by group licences? We agree that it would not be appropriate for not-for-profit debt advice providers to be exempt from the regime and not subject to any regulation. We share the Government s view that it is very important that: high standards in the not-for-profit debt advice sector are upheld and that there is proper scrutiny of new entrants to the field in order to protect consumers from those who may be well-intentioned but are not capable of delivering to an appropriately high standard. Although we felt that the group licensing regime worked well, we understand that it is not possible to replicate this model under the FCA. We therefore agree that not-for-profit debt advice should be regulated by the FCA under a bespoke regulatory model. We also welcome the opportunity to join the Financial Ombudsman Scheme under the voluntary jurisdiction as this could provide an assurance for clients of an element of free, independent scrutiny for complaints in the sector with the added assurance of free redress if wrong advice is given. This approach will also be an advantage for our sector as

6 more transparent complaint handling process could help to serve to drive standards in the sector even higher. From the Money Advice Trust s perspective, we would be happy to fall under the FOS compulsory jurisdiction. Ideally all free debt advice agencies would fall under the FOS compulsory jurisdiction but we appreciate that this could be challenging for smaller advice agencies with fewer resources. If the FCA goes down this route, they will need to ensure that both the costs and administrative and reporting processes are proportionate for free-to-client agencies. Perhaps a reduced level of fee for complaints (after the first 25) could be put in place. We believe there is a lot of merit in the FCA working with the sector to facilitate a move over to the FOS complaints jurisdiction. We are concerned that there may be unintended consequences if the not-for-profit sector does not move over to FOS en masse, for example, individual lenders and trade bodies that currently refer and signpost to our sector, may be less happy to do so in future. We would urge the FCA to ensure that any fees are indeed kept to a minimum for the not-for-profit debt advice sector. Smaller charities will find it particularly onerous to find fees for FCA regulation at a time where financial resources are stretched to breaking point. The level of fees could become a crucial factor for smaller organisations deciding if it is feasible to offer debt advice at all. We are very pleased to note the intention of the FCA to grandfather group licence holders into the FCA regime at no cost. We also are pleased to note that there is no intention to charge a fee for notfor-profit debt advice bodies that hold individual rather than group licences. We have no particular comment to make on the proposals for professional bodies, cycle to work schemes, or enterprise schemes, although these appear to be reasonable. We support the proposals that insolvency practitioners who are carrying on debt-related activities should seek authorisation. We have come across many instances of consumer detriment in relation to debt management companies that offer individual voluntary arrangement advice as well as debt management plans (so-called IVA factories ). A requirement for full authorisation in such cases would be consistent with the FCA approach to commercial debt management companies. We share the Government concerns outlined in point 3.43 and the desire to see: the provision of debt-related services thoroughly regulated and subject to high standards.

7 Scope of regulation 6 What are your views on the Government s proposals for scope of regulation, including changes in respect of credit intermediation, tracing agents and credit reference agencies? We support the simplification of the credit brokerage and intermediation categories which does not appear to dilute any existing consumer protections. Indeed the requirement for those carrying out credit intermediation only to become authorised is an enhancement of existing consumer protection. We are not at all convinced that third party tracing agents should be exempt from regulation. Even if they are not conducting any financial activities as part of their tracing activities, we have some concern that their actions would not be sufficiently policed and controlled. We have anecdotal evidence pointing to consumer detriment, caused by the less scrupulous firms within this sector. We understand that the intention is to make the firms hiring tracing agents to be held responsible for their activities, but would urge the FCA to ensure that this system is sufficiently robust. We can see that it will be relatively easy to monitor the quality of the information that firms hiring tracing agents provide, so firms can be held accountable in this way. However, we are not sure how firms will monitor tracing agents that are using illegal methods to gain information. Would there be a temptation for lenders to be less vigilant in monitoring bad behaviour by their agents if they were happy with the results? What controls would be put in place to ensure that the tracing agent did not covertly use illegal or clandestine methods to gain information about individuals? What protections would be in place to protect wrongly identified consumers? We have no particular comment to make on the proposed narrowing of the definition of credit referencing services to exclude firms who hold a licence for this activity where their primary business is not credit referencing. 7 Are there any exemptions that are to be carried forward that should be reconsidered? We are pleased to note that the exemption for instalment credit has not been widened to increase the duration of the agreement to beyond 12 months or to allow for more than four instalments. We think that any such changes could risk consumer detriment and share the Government concern that any such changes would encourage gaming of the system. We are unclear as to why local authorities are exempt from the need to be authorised in respect of regulated credit activities such as consumer hire or debt counselling or debt adjusting as part of providing debt advice. If not-forprofit debt advice providers need to be authorised, we would suggest that a similar regime needs to be in place to ensure the quality of local authority debt advice services. We understand that it could be quite difficult to establish the appropriate authorisation for local authorities as they carry out such a mixed

8 bag of activities. We do not feel qualified to comment on the full range of local authority activities but feel there are compelling reasons why a local authority money advice service should be subject to the same regulation and authorisation as others in the not-for-profit sector. The scope for conflicts of interests is in fact greater for local authority services. This is because they are often advising consumers about debts to the local authority (for example. council tax, business rates, rent arrears and so on). If it is decided that other local authority credit-related activities do not need to be subject to regulation, we suggest that an exception should be made for their money advice services. We are also concerned that clients of local authority debt advice teams will not have access to redress through the Financial Ombudsman Scheme. For the reasons outlined above and in our response to question 5, we have a strong preference for local authority money advice services being subject to FOS. If this does not come to pass, we presume that local authority clients will have the ability to complain to the Local Government Ombudsman instead. This leads us to ask what protections will be put in place to ensure that there is a consistency of approach? 8 What are your views on the proposed new activity to capture the activities of peer to peer platforms? We strongly support the creation of a new regulated activity for peer to peer platforms. This should hopefully ensure that both consumers who borrow and those that lend are protected. Although we are not aware of instances of consumer detriment in the area of peer to peer lending, this is a relatively new industry and it is important to pre-empt any future problems emerging by ensuring appropriate regulatory protection is in place. 9 Do consultation respondents have any data on the activity of lead generators in the debt management sector? What detriment is being cause by these firms? And what are your views on a suitable regulatory response? We welcome the stated intention for lead generation firms to fall within the scope of regulation where they sell leads for the provision of credit. We would strongly encourage the FCA to regulate the activities of lead generation for debt advice. We feel that regulatory action should be taken and would support the creation of a new regulated activity of effecting introductions to debt advice to bring lead generators into regulation as set out in point 4.40 of the paper. We have very real concerns that lead generation firms pretend to be charitable or free providers to gain commercial advantage. We are disappointed that the Government has decided not to take action to bring such companies into scope ahead of the transfer to the FCA in April Whilst we support joint work with other government departments we cannot think of effective cross-departmental action that could be taken to reduce consumer detriment in this area. Lead generation activities tend to fall

9 through the gaps between the regulatory responsibilities of different departments and we have found that little effective action materialises. We would be interested to see what measures the FCA can put in place to tackle misconduct by the firms who do business with lead generators. In our experience, the OFT was keen to address misconduct in this area but lacked the resources to track down firms engaged in inappropriate or illegal online advertising and to prevent cold-calling and texting by such firms. For example, as soon as an incidence of bad practice in online advertising was reported and dealt with, another would spring up to take its place. We have included some illustrative samples of Google searches for debt advice, National Debtline and Citizens Advice in appendix 1 attached to this response. We have also included a short list of illustrative National Debtline client case studies giving examples of this type of problem in appendix 2. The OFT Misleading names guidance 1 has not had sufficient effect on such practices although it has been very useful in backing up OFT decisions on licence holders masquerading as free debt advice charities such as National Debtline and Citizens Advice. We would like to take this opportunity to express our concern over companies that are operating outside of the UK. It is often said that many firms are not based in the UK and therefore beyond the reach of regulatory enforcement. If this is the case, it puts the onus on the FCA to take action against any UK regulated firms who take leads from such companies. Should regulated companies be banned from paying for leads? We note the intention to require such companies to have an establishment in the UK but would welcome a commitment to actively chase down those companies that do not comply with these requirements and continue to advertise non-compliant services on the internet, and to bombard people with text and phone messages. The Google adverts we see are frequently dangerously misleading and inaccurate. They provide catchy information clear all your debts and Government solution or pretend to be providing free advice when they do not. It is often not clear to the consumer that such services are selling on their personal details to another company altogether, or indeed to a range of companies. In our experience, callers to our helplines often do not understand whether the organisation they are being marketed by is a fee-charger, a lead generation firm or a free independent service; which is confusing for consumers. People who engage with a fee-charging service are often desperate for help and unaware of their options. This is a particular issue with online advertising and marketing generally as clients are often unaware of free providers. From our recent research, 2 50% of people who had set up an arrangement with a fee Sustaining debt repayments Centre for Research in Social Policy Loughborough University and Lloyds Banking Group l bg mat_november_2012_2.pdf

10 charger say they did so because they weren t aware that a free alternative existed. The research also stated that: There was very little evidence from the qualitative research that people were shopping around or gathering information to find the best solution to their debt problem. Interviewees were not aware of all of the options available to them and most took the first solution they came across. 1 Other research 3 we have conducted on the issue of debt management plans concluded that: Once they had made initial contact with a fee-charging debt management company, the customers we interviewed were unlikely to speak to any other companies. Furthermore, the 2010 OFT Debt Management Compliance Review uncovered many problems with the online advertising for fee-charging debt management companies. A key finding established: Misleading advertising is the most significant area of noncompliance, in particular misrepresenting debt management services as being free when they are not. The impact is clearly going to vary from annoyance that the consumer is being bombarded with unwanted calls, texts or s, to severe detriment where a consumer takes the service without knowing if the company is licensed, reputable, or is offering a suitable service for them. They may part with money or card details and find their accounts subsequently accessed. They may pay a fee for a service which is free elsewhere. We are particularly concerned with companies who charge for advice about debt relief orders or bankruptcy. Consumers have genuine concerns about where the companies are obtaining their data and whether data protection rules have been breached. From the free-to-client debt advice sector perspective, our reputation is being put at risk by these activities. We have had numerous instances of clients and members of the public contacting Money Advice Trust, National Debtline and Business Debtline to ask us not to cold call them or to text them. Recently we were told that the Money Trust has been cold-calling members of the public. 3 An independent review of the fee-charging debt management industry Personal Finance Research Centre & Money Advice Trust ary.pdf

11 It is very hard to get reliable information to make a complaint. This is because the phone numbers will typically be untraceable or blocked so the recipient cannot identify and make a note of the number. This makes our ability to make complaints very difficult in practice. We spend considerable time reporting instances to the OFT and other regulators. Enforcement and redress 10 What are your views on the Government s proposal to repeal many of the criminal offences in the CCA and make breaches of these requirements, once in rules, subject to the FCA s enforcement toolkit? We can see the merit in the proposals to repeal some of the criminal offences in the CCA. We are not wholly comfortable with the proposals as they stand. Examples of where we have concerns in relation to sections to be repealed are as follows. Section 51 prohibiting unsolicited credit-tokens and section 51A on restrictions on provision of credit card cheques. Sections 55A and 55B in relation to pre-contractual explanations and the assessment of creditworthiness. Sections 74A and 74B in relation to information to be provided on a current account agreement and information to be provided on significant overdrawing without prior arrangement. We are not tied to the sanctions for breaching the rules being criminal offences in these cases, but seek reassurance that the effect of repealing these sections is not to inadvertently remove the requirements altogether. The paper is not clear how the requirements for unsolicited credit tokens, credit-card cheques, pre-contractual explanations, assessment of creditworthiness, information on current accounts and overdrafts will be set out instead. We understand, for example, that the advertising rules under the CCA will be replaced by stronger FCA rules on financial promotions. We seek the same clarification as to how the sections above will be replaced and replicated. Interim permissions 11 What are your views on the proposed interim permissions regime? This appears to be a proportionate approach to the transfer of standard consumer credit licence holders from the OFT to the FCA. As a group licence holder, this is not applicable to the Money Advice Trust. 12 If you are operating a peer to peer platform and do not hold an OFT licence, what are your views on the transitional arrangements for peer to peer platforms?

12 We do not operate a peer to peer platform so are unable to comment in any detail. The transitional arrangements for peer to peer platforms appear to be sensible. Money Advice Trust April 2013

13 Appendix 1

14

15

16 Appendix 2 National Debtline case studies Client received a call from a company saying that they were a CAB. The caller claimed that they had been contacted by the OFT or Trading Standards about a debt the client had. They could not give any details but then started asking about what debts the client actually had. Client was then told they could get 1,200 written off. Client received an unsolicited text message telling them that the Government has introduced Debt Settlement Orders which allow people struggling with debt to have it wiped off. The text then invited the client to text back for more information. A client had been cold called by a company calling themselves Debt relief order helpline. Although they seem to have just given him advice and did not try to sell him anything they told the client he should never use National Debtline to apply for a Debt relief order as we would push him into applying for a Debt management plan. The client luckily knew this was not the case as a family member had applied through us for a DRO previously. The number he was given for the company was which on the internet comes up as Client phoned regarding cold-call from a company called Company said that for a 1,200 fee they would go to court and get the client s debts written off in full within 7 months. Company said this is due to new Government legislation allowing help for homeowners. Client had been receiving phone messages on a daily basis from a firm stating they are called National Debtline. She is not in when they call, but says she has had daily phone messages requesting her income and expenditure despite never having called a debt advice agency. She believes it to be from a foreign call centre as the number they call on is not recognised when she calls it back. She called National Debtline this morning to make sure it wasn t us phoning her. Client was cold-called by a company claiming to be National Debtline who said they could help the client with their debts. Client had never called us before and did not need help with debts. Client asked who they really were and where they got his information, but was given no answer said that number was hidden. Client received a phone call from First Claims Ltd. Was told that they could reach an arrangement with his creditors to write off 50% of his debt if he entered into an arrangement with them. Client was told that this was guaranteed. He was then told that this could only proceed if he provided his bank details and details of his creditors.

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