FSA Consultation CP13/7: High level proposals for an FCA regime for consumer credit

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1 FSA Consultation CP13/7: High level proposals for an FCA regime for consumer credit Response from the Consumer Finance Association Introduction The Consumer Finance Association (CFA) is the principal trade association representing the interests of major short-term lending businesses operating in the UK. The CFA is setting the standards for payday lenders by driving industry improvements and best practice and through proactively participating in consultations and research about the industry. Central to setting industry standards is an industry-wide Good Practice Customer Charter and our own Code of Practice. These commit our members to delivering better communication, robust affordability assessments, clearer information about price and payments, and practical help for those in financial difficulty. We welcome the opportunity to respond to this important consultation. We believe that proportionate and consistently enforced regulation is vital for a properly functioning consumer credit sector that allows for innovation and competition at the same time as ensuring appropriate consumer protection. It is especially important that regulators fully understand the sectors for which they have responsibility and we look forward to working with the new Financial Conduct Authority to help build understanding of the short-term lending industry in the UK.

2 Consultation questions 1. Do you agree that our proposals strike the right balance between proportionality and strengthening consumer protection? We believe that regulatory clarity and certainty is the basis of a successful and competitive credit market. We believe that in order for the FCA to strike the right balance between proportionality and strengthening consumer protection, it will be necessary to look at the markets to be regulated and fully understand how they operate. This is particularly true of the consumer credit market which will come under the FCA s remit for the first time in April The FCA is already engaging with us as a trade association and we hope that this will continue through the transition process and into the new regime. We hope when considering proportionality the FCA will use relevant data to determine market size and the level of detriment attributed to it, aside from this we agree with the key features of the proportionate approach outlined in the consultation. This will be a time of change for lenders. For this reason we welcome the transition period to allow for adaptation to the new regime. We are concerned however that this may become a confusing time particularly for firms with open applications to the OFT for other activities that are not currently covered by their consumer credit licence. Any firm wishing to carry out an activity for which it is not licensed will need to apply for full FSMA authorisation for the new activity and the activities for which it is already licensed, but it remains unclear what the situation will be for the interim period. Greater clarification would be useful. 2. Do you agree that we have included the right activities in the higher and lower risk regimes? It is possible that the classification of businesses as high and low risk will distort the market to the detriment of existing businesses and consumers. This is because the supervision of high risk firms will be resource intensive for businesses causing them to move to activities covered by the low risk categories. 3. Do you agree that our proposals minimise the impact on competition within the regulated consumer credit market? It is very unlikely that new consumer credit products will be brought to market during the authorisation period between April 2014 to April 2016, because of the current lack of clarity about the authorization requirements the FCA will have for a firms or what action the FCA may take on existing consumer credit products. A lack of product innovation could well be to the detriment of a competitive market. We also believe that the FCA must consider the possibility of reduced availability of credit and market exit as a result of a more expensive and in depth supervisory regime. Whilst the proposal asserts that there will be little market exit and no reduction in access to credit, there is no evidence to support this. If the burden of increased costs on firms leads to market exit, this will reduce the range of credit and credit-related products available to consumers. Lenders may also impose tighter lending criteria to ensure that they do not contravene the expectations of the new regulator. This presents the prevailing risk that, if credit supply is reduced, some consumers may be more likely to borrow from illegal lenders, which could have significant adverse social and financial consequences.

3 Scenario planning should be carried out for how credit availability will be maintained, if market exit does occur. For example, it is noteworthy that the government now needs to intervene in the mortgage market because its previous regulatory intervention has led to a supply shortage. The Chancellor announced in his Budget on 20th March 2013 Government-funded stimuli to boost the market. On the basis of this impact assessment, we believe that some of the FCA proposals could lead to reduced availability of credit for consumers, with corresponding unintended consequences in keeping with the mortgage shortage situation. For this reason we welcome that the FCA will look to engage with stakeholders on the issue of pricecapping and restrictions on the duration of loans. The CFA would be happy to contribute to the FCA s analysis. 4. Do you have any comments regarding our proposals for the interim permission regime? Plans need to be in place for handling the large number of applications and for how any backlog will be dealt with. Businesses will be looking for certainty that their application will be assessed and processed efficiently. We are also concerned by the very short timeframes. The authorisation process is new to both businesses and officials. Yet the authorisation assessments will not commence until Autumn/Winter 2014 and are due to be completed by the summer of This assumes that c.38,600 assessments (after the asserted minimal market exit) will be conducted within an 18 month period. We support the FCA s proposal to carry out work across the consumer credit market during the interim regime in order to have a better understanding of the potential risks and their impact on the consumer credit market. CFA members would be happy to take part in any way that leads to a better understanding of the industry. 5. Do you agree that we should apply the Threshold Conditions as proposed? We do, but we would like further guidance on what is expected from businesses and what should be prepared ahead of applying for full authorisation from the FCA. 6. Do you agree that it would be appropriate for the FCA to apply the approved persons regime activities as proposed? We support an authorisation process that requires lenders to be accountable without being onerous. Further guidance on preparing for the approved persons regime and what is expected of these individuals would be appreciated. 7. Do you agree with our proposal not to apply a customer function to any consumer credit activity, particularly debt advice? Yes we do. CFA members do not advise on any investments or any other financial products that are covered by the customer function. 8. Do you agree with our proposed approach to appointed representatives and multi-principal arrangements? We have concerns about the appointed representatives regime and multi-principle arrangements Firstly, we are unsure whether lead generators and brokers are appropriate for the appointed representatives regime. There are varying levels of compliance within this industry and it is often

4 difficult to identify individual companies. Consumers are often confused by the difference between lenders and brokers/lead generators and many may be entirely unaware that they have interacted with a broker. Many intermediary websites only identify themselves in the small print. The appointed representatives regime will do little to address these problems. Given this, it is might be more appropriate to authorise lead generators and brokers individually. We also have concerns about multi-principle arrangements. Though these arrangements may well improve customer choice, in practice we think a multiple principle agreement would be incredibly difficult to manage. It would need to be very clear on conflicts of interest and where responsibility lies. 9. Do you agree with our proposed approach to self-employed agents? This is not relevant to CFA members. 10. Do you agree with our approach to professional firms? Firms that benefit from Part 20 of the FSMA regime will have the opportunity to increase their credit providing activities and still keep them as incidental to their main functions. If this happens on any scale it will significantly skew and alter the consumer credit market. However we believe the Designated Professional Bodies listed in the consultation would offer minimal consumer credit products, and as long as the FCA retains responsibility for oversight we see no problem with this approach. 11. Do you agree with our proposal to apply prudential standards to debt management firms only? 12. Are there any difficulties in collecting data on the size of debt contracts being negotiated and/or the amount of client money held (as the basis for our prudential standards)? 13. Are there other measures that would ensure our prudential regime for debt management firms targets the firms that pose the greatest risk to consumers? 14. Do you agree with our proposals that the new high-level conduct requirements should apply from 1 April 2014? Reputable lenders should be able to meet the Principles for Business from the 1 April However as the consultation states this will be the first time that consumer credit will have a single set of rules setting out the parameters of expected behaviour. Further guidance on meeting the Principles for Business would be welcomed. To comply with FCA regulations, firms will incur considerable additional legal costs, system changes, management time and staff retraining. As an example, there will be additional costs to businesses from the requirement to change all their documentation to include statements about who they are regulated by and whether they have interim permission, are authorized or have limited permission.

5 This will require the documentation to be changed twice in a two year period or less. Whilst we support the need for transparency for consumers, the additional cost will be significant. 15. Do you agree with our proposed approach to financial promotions? We would need to see the consultation planned for the autumn to understand what would be expected here. Based on the fact that promotions should be fair, clear and not misleading we envisage no problems. However the power enables the FCA to give a direction if it considers that there has been, or is likely to be, a contravention of financial promotion rules in respect of the communication or approval. Any such direction should take into account the magnitude of the breach and of the actual detriment to consumers. 16. Are there provisions within industry codes that you think should be formally incorporated into FCA rules and guidance? The CFA hopes to work with the FCA to develop rules that are appropriate for short-term lending industry. The FCA has indicated that it envisages that self-regulatory codes will operate alongside statutory regulation. The CFA Code features a wide range of consumer protections including limits on rollovers, transparency and advertising and assistance for consumers who get into financial difficulty. We believe protections such as these would sit well in the future regulatory regime. We support the intention of the FCA to consult on bringing areas that provide clear protections to consumers into force as soon as possible. 17. Do you agree with the different standards that we propose to apply to different types of debt advice? Whilst we recognise the important contribution that non for profit organisations make in this sector, we do not support the FCA s view that the potential for consumer detriment is reduced because an organisation operates a not for profit model. Consumers should receive the same level of regulatory protection irrespective of whether they see a profit-making, or not for profit firm. However we do not want to hinder the work of not for profit debt advice, therefore the supervisory regime for this market should also be proportionate. Input should be sought from the not-for-profit sector to ensure this is the case. 18. Do you agree with our proposed approach to applying client asset rules to debt management firms? We agree because we want fee charging DMCs to work in the interests of consumers and offer a better standard of consumer protection. We presume that free debt advice providers that offer Debt Management Plans and IVAs will not be subject to the client asset regime. 19. Do you have any comments regarding our proposed approach to peer-to-peer platforms No comments. 20. Do you agree with our proposed approach to authorized firms which outsource the tracing of debtors to third party tracing agents? No comments.

6 21. Do you have any comments regarding our proposed approach to supervision and regulatory reporting? We support the FCA s plans to take a modified approach to supervising consumer credit firms during the interim permission regime. It would be useful to see what modifications the FCA plans to make so firms can prepare accordingly. Though deemed as high risk, we assume payday lending firms will be classified as flexible portfolio given the relatively small number of retail customers when compared with other credit products. With regard to reporting requirements it should be noted that the gathering of data, in all circumstances, is time consuming and resource intensive. For many consumer credit firms reporting to the regulator on this level will be an entirely new process. We assume that the FCA will take a modified approach to reporting requirements during the interim permissions regime too. 22. Do you have any comments regarding our proposed approach to enforcement? 23. Do you have any comments regarding our proposed approach to complaints and redress? Greater clarity is needed about how firms can seek redress as a result of regulatory errors. There is a small possibility that firms may be put out of business by some of the regulatory enforcement action that the FCA will be able to take. If the FCA s decision turns out to be incorrect, the proposals that compensation is only payable by the regulator on an ex gratia basis would appear to be insufficient. 24. Do you have any comments on our proposed approach to tackling financial crime? Recent experience suggests that, despite significant investment in anti-fraud technology, lenders are subject to cybercrimes. We would support the establishment of a work stream to tackle this issue and would be pleased to play a part. 25. Do you have any comments on our proposed interim permission fees? 26. Do you agree with our proposed approach for the FOS general levy for firms with an interim permission? 27. Do you agree with our market failure analysis? We agree with the comprehensive market analysis as a whole. Short-term loans are used as a substitute for credit cards by some customers; some of whom have no other option, but this does not constitute market failure. We believe that payday lending is being used as an alternative to credit cards because in uncertain economic times customers are less willing or unable to take on longer term debts. 28. Do you agree with the costs and benefits identified?

7 The increase in regulatory costs under the FCA is estimated to be between 215 and 265 million overall for firms and the regulator including one-off costs, with annual costs being between million. All of these costs will have to be met by consumer credit providers. Including fees, firms are expected to incur additional one-off costs of between million from the interim regime and from adjusting to the steady-state regime, and annual costs including fees of between 29 and 44 million in the steady state regime. The proposal asserts that the new regime will enable consumers to obtain better credit products and services through more effective competition. However, we fear that the evidence hints that the new regulatory regime may actually reduce product innovation and has significant potential to cause market exit and reduced availability of credit. The paper also states that additional costs and burdens are only placed on consumer credit firms where they are needed to provide consumer protection. However it is our view all firms, will have very significantly increased costs, particularly when the costs of regulatory supervision are also considered. There are also significant differences between the current OFT supervision and the proposed FCA supervisory regime. We do not support the assertion in the paper that firms that are currently supervised by the OFT will not incur substantial additional costs. The commercial impacts of the transfer of credit from the OFT to the FCA involve significantly increased compliance costs, changes to business operations and business strategy, product changes and increases in prices of products. Far from consumers experiencing enhanced benefits, they will suffer reduced access to credit and reduced competition. 29. Do you have any comments regarding our proposed approach to second charge lending? 30. Do you agree with our initial assessment of the impacts of our proposals on the protected groups? Are there any others we should consider? For further information, contact: Graham Dunn, Head of Public Affairs E: T: M: