THE NO NONSENSE GUIDE TO THE TRANSFER OF REGULATION FROM THE OFFICE OF FAIR TRADING TO THE FINANCIAL CONDUCT AUTHORITY
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1 THE NO NONSENSE GUIDE TO THE TRANSFER OF REGULATION FROM THE OFFICE OF FAIR TRADING TO THE FINANCIAL CONDUCT AUTHORITY Credit Competence A St Petersgate, Stockport, SK1 1DT. Telephone: This document is for general guidance purposes only. Whilst every effort has been made to ensure that the content is accurate and up to date, the information should not be construed as legal advice or as a substitute for legal advice. The information is issued in July 2011 by Credit Competence which is a trading name of Compliance Focus Limited, a company registered in England and Wales. Registered No Registered Office: St Johns Street, LONDON. EC1V 4PY. Compliance Focus Limited. 1
2 The transfer to the FCA In March 2013, the Financial Services Authority (FSA) launched its Consultation Paper High-level proposals for an FCA regime for consumer credit. The consultation paper reflects the government s decision to transfer the supervision and authorisation of consumer credit firms from the Office of Fair Trading to the FSA s successor, the Financial Conduct Authority. The proposals will impact all businesses that currently hold a consumer credit licence. The regulation of consumer credit activities will fall under the remit of the FCA with effect from 1 April This means firms holding a valid consumer credit licence must apply to the FCA from Autumn/Winter 2013 for what is called interim permissions. Firms that hold a consumer credit licence that do not apply for interim permission or new entrants to the market from 1 April 2014 will not be able to offer consumer credit services until they apply for and are granted full authorisation under the FCA. Interim permissions give temporary authority to a business to continue providing consumer credit services from 1 April 2014 until such time as the business application has been assessed fully by the FCA. The process for Interim Permissions It is intended that firms will apply online for interim permissions and be asked for certain voluntary information to help the FCA develop its risk management strategy. This information will include details of turnover, transactions, complaints, locations, use of agents, etc. Firms granted interim permissions will be recorded on the FCA website. The timetable Summer/Autumn 2013 Feedback following the 1st consultation paper. Autumn/Winter 2013 Policy statement issued following the 1st consultation. 2nd Consultation paper launched with proposed rules for the new regime. Firms will be able to apply for interim permissions. 1 April 2014 Transfer to FCA regulation takes place. The FCA will start reviewing applications for full authorisation for those firms with interim permissions. Autumn/Winter 2016 Authorisation process must be completed.
3 Appointed Representatives From 1 April 2014 firms will have to be authorised directly by the FCA or be exempt from authorisation. A firm can become exempt if it operates as an appointed representative of an authorised business. In this instance, the authorised business becomes the principal and must take responsibility for the acts and omissions of the appointed representative. FCA Directly Authorised (Principal) Appointed Representative In effect, the appointed representative acts under the authorisation of the principal and does not need to apply directly to the FCA for authorisation in its own right. It is proposed that an appointed representative will be able to have a number of principals except those operating in the field of debt collection. Debt collectors will be permitted to have one principal only. Becoming an appointed representative may be particularly attractive to smaller businesses or those that do not have financial or people resources to implement effective systems and controls to ensure compliance with the new regime. Lenders and Credit Reference Agencies will not be permitted to become appointed representatives. Firms will not be able to have appointed representatives during the interim permissions regime.
4 Approved Persons Under the FCA regime, as well as the FSA one before it, there are certain controlled functions which are performed within a business. These include individuals responsible for the overall compliance of the business, directors, senior managers and those responsible for client money. Individuals undertaking a controlled function must be an Approved Person. Approved Persons are senior individuals within the business that have responsibility for the manner in which the business is steered and operated. They are held individually accountable for compliance with the rules in the areas falling under their area of responsibility. An Approved Person will be vetted by the FCA and is subject to a Code of Practice. Enforcement action including public censure, fines and a ban can be applied to an Approved Person for breaches of the Code of Practice. Businesses (except not-for-profit ones) will be required to have at least one, and in some cases several, Approved Persons. The following table shows the Controlled Functions that will be relevant to consumer credit businesses.
5 Controlled Function Governing Function Apportionment and Oversight Function Applicable to: All firms will be required to appoint individuals to the Governing Function except: Firms with limited permissions; Firms where the main business activity is not regulated credit activities; Authorised professional firms where the regulated credit activities are incidental to the main business; and Sole-traders. The only firms that will be required to appoint an individual to this function will be those that do not have individuals performing the governing function. A sole-trader must perform this function if he is acting as a principal to an appointed representative. Compliance Oversight Function Firms offering debt management services and credit-repair must appoint an individual to perform this function. This person will also be responsible for the compliance and competence of advisers. Money Laundering Reporting Officer Function Systems and Controls Function Protecting Clients Money and Assets Function Significant Influence Function Firms that are covered by the Money Laundering Regulations (except lenders with limited permissions) must appoint a Money Laundering Reporting Officer. Applies to all firms except: Firms with limited permissions; Firms where the main business activity is not regulated credit activities; Authorised professional firms where the regulated credit activities are incidental to the main business; and Sole-traders. Applies to an individual in a debt management firm, including a business that is a sole-trader. Only applies to firms where significant responsibility is given to a senior manager of a relatively substantial business, except: Firms with limited permissions; Firms where the main business activity is not regulated credit activities; Authorised professional firms where the regulated credit activities are incidental to the main business; and Sole-traders.
6 High level rules and requirements All firms will be required to comply fully with the Principles for Business. The Principles, of which there are 11, are the fundamental requirements under the regulatory system and set out at a high level the overarching standards against which a business is expected to operate. Amongst the challenges here will be for firms to actively demonstrate and prove that they are consistently treating their customers fairly. Financial Resources Due to the fact that the majority of debt management companies hold client money, the FCA proposes to implement additional safeguards for consumers. It is anticipated that debt management companies will be subject to a financial resource requirement equal to 2.5% of annual turnover or 5,000 whichever is higher. Conduct rules Conduct of business rules will be introduced which by and large will reflect many of the provisions under the current Consumer Credit Act, OFT Guidance and industry codes of practice. In addition, larger debt management firms (the definition of which has yet to be determined) will be subject to additional rules in relation to the handling of client money, including regular reconciliation of accounts, detailed record-keeping and an annual independent client account audit. Reporting Requirements Firms that are already subject to the FCA regime are required to provide certain management information to the regulator on a regular basis. This helps the FCA to form a view not just in relation to the firm itself but also against its peers and the industry as a whole. Consumer credit firms will have to undertake some regulatory reporting but the content of this has yet to be decided. Complaints Consumer credit licence holders currently pay a levy to the FOS every 5 years. Under the proposals this is likely to be abolished but FOS case fees will continue to be applied for chargeable cases. Currently the first 25 complaints in a year are not chargeable.
7 I hold a current consumer credit licence what must I do? If you wish to continue offering consumer credit services after 1 April 2014 you must apply for interim permissions from Autumn/Winter I hold a consumer credit licence which has an expiry date before 31 March 2014 what must I do? You will need to apply to renew the licence as well as applying for interim permissions. I don t have a current consumer credit licence what must I do? To apply for interim permissions and therefore be able to operate from 1 April 2014 you must also hold a current consumer credit licence. You should think about whether you need to apply for a consumer credit licence now. What are interim permissions? Interim permissions give temporary authority to a business to continue providing consumer credit services from 1 April 2014 until such time as the business application has been assessed fully by the FCA. What if I don t apply for interim permissions? If you don t apply for interim permissions then you will not be able to continue to offer consumer credit services from 1 April If you offer services without interim permissions then you will be committing a criminal offence. How much will it cost to apply for interim permissions? If you are a sole-trader you will need to pay a fee of 150. All other businesses must pay a fee of 350. Will I automatically be granted full authorisation after I have been given interim permissions? No. Your application will be assessed by the FCA to ensure you meet the Threshold Conditions for authorisation and that you are fit and proper. What preparations do I need to make? Being authorised by the FCA will mean that you will have to operate systems and processes which are designed to comply with the rules. You will also need to have controls in place to ensure and monitor this compliance. This includes having documented procedures and training which are capable of inspection and testing. Think about what your business risks are and how you can best manage these.
8 How can Credit Competence help? Credit Competence specialises in compliance and regulatory matters. We are experienced in all areas of consumer credit activities. Our Managing Director, Bernadette McEvilly has operated in the financial services industry for over 26 years including chief compliance roles under the FSA and OFT regimes and has been an approved person for several controlled functions. We believe we are the only compliance consultancy with such direct and first-hand experience of both regulatory regimes just one of the many aspects that set us apart. We are able to offer assistance in applying for authorisation as well as your preparations in the areas of processes, training, controls and regular on-going compliance support. help with the shades of grey.. because compliance isn t black and white.
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