A Guide for Motor Dealers Introduction Motor Dealers are invariably also credit brokers and are currently required to be licensed by the Office of Fair Trading (OFT) for (at least) their credit broking activities (Licence category C) and usually (but depending on their precise business model) the activities of debt adjusting (Category D) and debt counselling (Category E). MAY 2013 Changes to Consumer Credit Regulation On 1 April 2014, the OFT will no longer exist and the regulation of activities relating to consumer credit will move away from the OFT and will instead be regulated by the new financial services industry regulator, the Financial Conduct Authority (FCA), which has just replaced the Financial Services Authority (FSA). This will happen on 1 April 2014. This paper pulls out the main aspects of the regime as it will impact motor dealers and suggests the areas where dealers need to focus in preparation of the changes. The current consultation papers The following consultations papers were issued on 6 March 2013: a. HM Treasury: Approach to financial regulation: transferring consumer credit regulation to the Financial Conduct Authority. This sets out the detail of the regime and provides draft legislation. b. FCA s CP13/7: High-level proposals for an FCA regime for consumer credit. This sets out the high-level approach the FCA is likely to take to authorisation of the sector. Whilst there is a lot to take in from these papers, it does not yet set out the full regime. A further consultation will also be issued towards the end of this year setting out the more detailed FCA standards the FCA will expect firms to follow.
However, the level of detail provided, together with the fact that the new regime is largely modelled on the existing regime applicable to other financial services firms regulated by the FCA, means that consumer credit firms can start to prepare now for what is to come. The Regulatory Framework From 1 April 2014, consumer credit activities will be regulated by a combination of provisions retained under the Consumer Credit Act 1974 (CCA) and new provisions in the Financial Services and Markets Act 2000 (FSMA). The CCA (and many of the statutory instruments made under it) will continue to govern the requirements for credit and hire agreements and most of the rights that customers currently have against consumer credit firms. FSMA and statutory instruments made under it, as well rules made by the FCA (and which will be contained in the FCA Handbook), will largely regulate how firms are authorised and the standards they need to meet to obtain and maintain authorisation. However, the FCA Handbook will also make rules which formalise OFT Guidance, making them into rules that unquestionably need to be followed as well as potentially add to the current protections given to customers, particularly where there are only limited rules that apply currently. There is also a requirement placed on the FCA to review the provisions that remain in the CCA by 2019 with a view to considering whether they can be repealed and be placed fully within the FCA Handbook. What does this mean for motor dealers? for loans even where the firm does not make the introduction) will now become regulated and require authorisation from the FCA. There is also a new regulated activity called "operating an electronic system in relation to lending". This activity has been newly introduced to catch peer to peer lenders. However, as currently drafted it catches persons who operate an electronic system to present credit agreements to individual customers where that person determines which agreements to present to customers. Thus, if a dealer uses a technology system to sign up customers to credit agreements it is likely, as currently drafted, that they will perform this new activity. We hope that the definition will be narrowed in the final legislation, but dealers will need to consider this carefully. In the short term, there may not be a lot of change to the prescribed conduct standards that apply to credit agreements. So it is likely that credit agreements will look very similar (with the regulator details changing). You will continue to need to give adequate explanations to customers and the requirements around credit checking and anti money laundering checks will be similar. Section 75 liability will continue to apply as it does now. Voluntary termination and restrictions on repossession of vehicles will remain, as will the need to serve the same sorts of post contractual documentation. However, the big change will be in the nature of the way you will be regulated. Consumer credit regulation is effectively being replaced by a regime that is very similar to the regime that applies to the sale of insurance (although there are some significant differences). The FCA is a very different regulator to the OFT. Dealers will need to consider carefully the options now open to them to obtain authorisation, what organisational changes they may need to put in place to be able to get authorised and to minimise the risk of severe sanctions being taken against the dealership firm or directly against senior managers. Introducing customers to a finance provider (i.e. credit brokerage) will remain a regulated activity under the new FCA authorisation regime. In addition, in a change from the way the CCA worked, the activities that previously made firms "credit intermediaries" under the CCA (such as assisting customers to complete applications
What do dealers need to do to be able to continue to offer credit after 1 April 2014? The transfer to authorisation by the FCA is taking place in 2 stages: Stage 1: No later than 31 March 2014, existing holders of consumer credit licences will need to make a notification to the FCA that they continue to want to carry on consumer credit activities and pay a small fee ( 150 for firms sole traders and all others 350). The notification will be an online process requiring you to submit your current licence details, confirm the details relating to your current licence are correct and that you hold the licence categories that you need. Firms who have properly notified the FCA will then automatically receive an Interim Permission. Should you need the new activity of "operating an electronic system", in order to obtain an Interim Permission for this activity, you will need to hold an OFT licence covering debt administration. If you do not have that activity on your licence already, you will need to consider applying now to vary your licence. It is important that the details of your licence are correct and that you have the activities and the trading names on your licence that you need. This is because if you need to do a variation to your licence details after 31 March you will only be able to do so by making a full authorisation application (see below). This will take a long time to prepare and be determined and you will not be permitted to trade with different details until full authorisation comes through. Stage 2 At some point between 1 April 2014 and 1 April 2016 all firms with an Interim Permission (see Stage 1 above) will need to apply for full authorisation from the FCA or become an Appointed Representative (AR) of someone with full FCA authorisation for credit activities. The FCA indicates that applications will be invited for full authorisation in stages from 1 October 2014 with different categories of firm being directed to apply by a certain deadline (the deadline cannot be missed). Motor dealers may already hold full FCA authorisation or be an AR for its insurance activities. However, any such dealer will still need to obtain interim permission before 31 March 2014 if it is to carry on its credit related activities after that date. Being an Appointed Representative You will be able to continue to offer credit if you can find a firm (a "Principal") with full FCA authorisation for credit activities who is prepared to appoint you as their AR (such as the motor finance provider you broker agreements for). You can have an AR agreement with each different finance dealer you do business with if you use more than one (known as a multi-principal agreement). A Principal will have regulatory responsibility for the activities carried by an AR under an AR agreement and therefore may face direct enforcement by the FCA for any breaches of the regulatory regime by the AR. For this reason, many finance providers may have a policy of not appointing ARs. If your motor finance provider will appoint you as an AR, you will need to put in place a written agreement between you which will need to satisfy certain legal FCA requirements. If you are an AR for more than one Principal, you will need to put in place an agreement between all of your Principals too. An important aspect of the transitional arrangements to bear in mind is that a firm with an Interim Permission cannot appoint ARs until it has obtained full authorisation from the FCA. This means, in practice if you manage to secure a firm who is prepared to act as your Principal you will still need to apply for an Interim Permission pending your appointment as an AR and you will need to ensure that your proposed Principal gains full authorisation before the cut off time for you to apply for full authorisation, otherwise your Interim Permission will lapse and you will need to commence a new application for authorisation. In the intervening period you will not be allowed to carry on your credit related activities.
Being Authorised by the FCA If a dealer does not have a firm to appoint them as an AR or the terms of the AR agreement would be too restrictive for your business (e.g. the Principal would only appoint you on terms that prevent you from brokering for other finance providers), then a dealer will need to obtain full authorisation from the FCA. This will involve the dealer making an application for authorisation from the FCA. The FCA has not yet issued the format of the application form that will need to be completed nor given details of the information that a firm will need to provide. However, based on applications for all other permissions the FCA currently issues, we expect the application will need to be very detailed, provide a full business plan, alongside details of the products and systems and controls the business has in place to ensure compliance, as well as provide copies of firm processes and procedures. Ordinarily, it takes firms applying for FCA authorisation between 3 to 6 months to prepare the application and it is likely you will need to engage professional advisers to assist you. Every firm will need to be able to demonstrate that they meet the "Threshold Conditions" and that the persons running the firm are "fit and proper" to perform that function. The FCA takes a more structured approach to supervision of firms and senior management involved in the firm. Limited permissions: Tier 1 and Tier 2 Firms There is a new "limited permissions" regime being created which is intended to create a lighter touch regulatory regime for certain types of firms which are identified by the Government as "lower risk" firms. These are also called "Tier 2" firms by the FCA and include the following activities: credit brokerage (and debt adjusting for example where you arrange for the discharge of an existing finance deal on a vehicle being taken in part exchange) where the firm's main business is selling goods and non-financial services and broking credit is a secondary activity (unless you regularly broker credit in the consumer's home); hiring goods (authorisation for hiring goods will transfer with consumer credit to the FCA) interest free / charge free lending (not on hire purchase or conditional sale) where your main business is selling goods and non financial services. The credit brokerage activity above will probably mean that many motor dealers will be considered "Tier 2" for the purposes of authorisation and will mean that dealers will be able to apply for a limited permission. Firms carrying out lower risk activities will be subject to more limited scrutiny when becoming authorised, subject to mainly reactive supervision, have limited reporting obligations and have lower authorisation and annual fees. However, if a firm carries out any other FCA regulated activities (for example "operating an electronic system ) other than under an exemption (such as carrying on activities as an AR), they will not be able to apply for limited permission and will instead need to apply for and satisfy the full authorisation requirements for a Tier 1 (or higher risk) firm. For example, if a dealer is directly authorised by the FCA for insurance activities, it will not then be able to hold a limited permission for its credit related activities and will need to submit an application for full authorisation. But where a dealer can obtain limited permission, it may also be able to become an AR or retain its AR status (for example in respect of insurance activities), and therefore simultaneously be authorised for some activities but exempt from authorisation for others. Threshold Conditions All firms, whether Tier 1 or Tier 2 firms, must satisfy standards known as the Threshold Conditions. A firm must demonstrate that they meet these standards when they apply for authorisation, but also throughout all the time that it holds authorisation. The Threshold Conditions differ slightly for Tier 1 and Tier 2 firms, but the ones that are most likely to be relevant are set out in Table 1.
Table 1 Threshold Conditions 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. A firm must be capable of being effectively supervised by the FCA, including the complexity of its regulated activities, products, whether it has "close links" that might prevent effective supervision of the firm by the FCA and how the business is organised. Applicable to firms applying for a limited permission Yes Yes, but modified FCA will not consider the complexity of the activities or products and are only likely to complete checks on key controllers of the firm and investigate complex ownership structures Approved Persons All authorised firms and most Appointed Representatives will need to have the persons in certain positions authorised as "Approved Persons" by the FCA. These people will be directly authorised by the FCA, will owe duties and obligations to the FCA (such as reporting breaches) and will be personally responsible and face individual fine and sanction if the firm acts in breach of requirements. The obligations differ slightly depending on whether you are a Tier 1 or Tier 2 firm. The positions which will need to be performed by an Approved Person are as set out in Table 2. The detail of how they will apply is still to be finalised but seems to be as indicated in the final column of that Table. Dealers should be thinking immediately about the individuals that this will affect and whether engaging with legal advisers for training and manuals would be helpful at this initial stage. The firm must demonstrate appropriate financial resources and people and operational resource (including the skills and experience of those managing the affairs of the business) for the, nature and scale of the business Yes, but modified In relation to financial resources the FCA will only consider whether the firm has sufficient capital to meet debts as they fall due 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. Yes The firm s strategy for doing business must be suitable for its regulated activities, have regard to the FCA s operational objectives. No
Table 2 FCA Handbook Rules Controlled function Governing functions Apportionment and oversight Compliance oversight Money laundering reporting officer Systems controls functions and Which positions in the firm? The people who direct the firm's affairs The person responsible for ensuring appropriate governance and maintenance of proper systems and controls Oversight of the firm's regulatory compliance The person responsible for money laundering compliance The person responsible for reporting to the board on how it complies with systems and controls requirements Which firms does it apply to? All firms and ARs except "Introducer ARs" and sole traders. An AR carrying on the credit activity as a secondary activity only need one individual approved for this function Firms with limited permissions, firms whose main business activity is not a regulated credit activity and authorised professional firms carrying on regulated credit activity on an incidental basis will need one person approved. Sole traders will not need an approved person for this function unless they act as a Principal to an AR Only debt management and credit repair businesses. It is not clear whether those holding debt adjusting activities will need this if all they do is arrange the discharge of existing finance on part exchange vehicles All firms (other than Tier 2 firms) covered by the Money Laundering Regs All firms except those with limited permissions, firms whose main business activity is not a regulated credit activity and authorised professional firms carrying on regulated credit activity on an incidental basis as well as sole traders. This function can be combined with another controlled function. As set out above, the CCA will continue to apply to many of the requirements relating to the form and content of credit agreements. However, the requirements which are currently contained in OFT Guidance (such as the OFT Irresponsible Lending Guidance and the OFT Credit Brokers and Intermediaries Guidance) will be reviewed and rewritten into FCA rules contained in the FCA Handbook. They may be changed or added to during this process. These new rules (which we are yet to see) will be in force from 1 April 2014 (although the FCA have indicated that firms will have a grace period of 6 months before they will enforce them so long as they are in compliance with current OFT requirements). These new FCA rules may also incorporate current industry Codes requirements. Principles for Business In addition to the detailed conduct rules, the FCA sets "high-level standards" for firms which are more general in nature, but set the overall principles which set out the broad parameters of expected behaviour that it will judge a firm against. These apply to Tier 1 and Tier 2 firms. There are eleven binding principles for businesses set out in the "PRIN" section of the FCA Handbook. These are set out in Table 3. The FCA thinks that firms which are already well managed and compliant with current OFT guidance should adapt to PRIN easily. However, these principles set out a blue print for the culture the FCA will expect a firm to adopt. Importantly, it is not simply a matter for being able to claim your business operates in accordance with these Principles, but you must be able to demonstrate to the FCA that you do.
Table 3 Principles for Business 1 Integrity A firm must conduct its business with integrity. 2 Skill, care and diligence 3 Management and control A firm must conduct its business with due skill, care and diligence. A firm must take reasonable care to organise and control its affairs responsibly and effectively, with adequate risk management systems. 4 Financial prudence A firm must maintain adequate financial resources. 5 Market conduct A firm must observe proper standards of market conduct. 6 Customers' interests 7 Communications with clients A firm must pay due regard to the interests of its customers and treat them fairly. A firm must pay due regard to the information needs of its clients, and communicate information to them in a way which is clear, fair and not misleading. 8 Conflicts of interest A firm must manage conflicts of interest fairly, both between itself and its customers and between a customer and another client. 9 Customers: relationships of trust A firm must take reasonable care to ensure the suitability of its advice and discretionary decisions for any customer who is entitled to rely upon its judgment. 10 Clients' assets A firm must arrange adequate protection for clients' assets when it is responsible for them. 11 Relations with regulators A firm must deal with its regulators in an open and cooperative way, and must disclose to the appropriate regulator appropriately anything relating to the firm of which that regulator would reasonably expect notice. 1 It will be important, therefore, to conduct a full review of the way you do business and the checks and balances in place within your business to ensure that you operate at all times in accordance with these Principles and achieve compliance. These are your "systems and controls" and the FCA will expect firms to be able to clearly show the systems and controls in place within your business to ensure compliance. There are detailed rules that will need to be considered within The 'Senior Management Arrangements, Systems and Controls Module' of the Handbook (known as "SYSC"). Firms will be expected to have appropriate management information being fed to senior management, senior management acting on the information and suitable checks or audits of the business to ensure compliance. Firms will need to be able to show that staff at all levels have a psyche of doing the right thing by customers and treating them fairly at all times. Staff incentive structures will need to be appropriate and of a type that does not encourage poor customer outcomes. The FCA has indicated that the types of systems and controls that a firm must have in place will reflect the nature, scale and complexity of the firm s business and the risk the activity potentially poses to consumer. In other words, the FCA will take a proportionate approach to the interpreting a firm s responsibilities under the rules. General Rules There will be a number of new general rules relating to administrative tasks such as status disclosure, use of the FCA logo and interpretation of the FCA Handbook. These general rules also include a prohibition on firms taking out insurance in respect of any enforcement penalties issued by the FCA. The new status disclosure rules include requirements relating to disclosure of interim permissions, in the period before firms obtain full or limited authorisation. The disclosure statement will need to be included in all consumer communications. Therefore, whilst firms will not need to actively inform customers of the change of regulator before 1 April 2014, all customer documentation will need to be amended from this date. Pre-contract information and credit agreements will also need to be updated to include details of the FCA in place of the OFT. The draft Handbook (GEN) appended to the FSA Consultation Paper includes the proposed disclosures. This is likely to involve systems changes for many firms which will then need to be repeated when full authorisation is obtained. A firm will also need to pay ongoing fees to the FCA as an authorised firm (which are likely to be significantly more than firms have been used to paying to the OFT).
Supervision and Enforcement It is expected that motor dealers will not have a named supervisor, but will deal with a specialist sector specific team of supervisors who will understand the industry. Firms with limited permissions may not have much contact from the FCA (although it is expected that the Trading Standards Service will continue to play a role in the enforcement of consumer credit compliance and will continue to inspect premises and report non-compliance to the FCA or seek to enforce some breaches directly). Firms with full authorisation will probably need to submit regulatory reports to the FCA annually (although this is likely to be less onerous for firms with limited permissions). Firms will generally be expected by the FCA to stay abreast of all developments, news releases, speeches and other pronouncements made by the FCA and to factor the regulator's thinking into the firm's conduct. Firms therefore need to ensure their compliance department is suitably equipped to monitor FCA information. The FCA has substantially stronger enforcement powers than the OFT, notably, they have the power to fine firms an unlimited amount (and frequently imposes significant fines on firms) as well as the power to order firms to pay compensation to customers (the very large fines can often be a fraction of the amount a firm is forced to pay in compensation). As set out in the Principles for Businesses, there is also an obligation to actively report breaches a firm becomes aware of to the FCA. Getting Prepared Motor dealers need to start preparing for the new regime now. The sorts of things you should be doing are: Talk to your finance provider(s) to work out whether you could operate as an Appointed Representative; Check your current consumer credit licence to ensure you have all permissions you need and are likely to need in the next 2-3 years and that all the details, including your trading names, are correct; Set up a project lead within your business to keep abreast of the consultations and timelines for applications to be made and to implement a change programme to prepare for authorisation; Conduct a full compliance audit of your policies and procedures against current requirements and against PRIN; Review your corporate governance arrangements, management information and decision making processes in light of the new requirements; Consider which Approved Persons you will need and consider who is appropriate to fulfil those roles or whether you may need to recruit additional resource; Map your current risks and review current approaches and senior oversight of those risks; Plan for literature changes.
About Addleshaw Goddard Addleshaw Goddard is a law firm with offices in London, Leeds and Manchester and regarded as a leading specialist in consumer finance. We can offer a range of services to help you to prepare for the new FCA regime, including interim permissions reviews, training, compliance audits and application assistance. Our regional offices and the way that we structure our teams means that we can deliver leading advice in the sector at competitive pricing. If you would like to arrange a free first meeting to discuss these proposals and your requirements, please contact Amanda Hulme on 020 7880 5853 or one of the team below. The AG team Amanda Hulme, Partner 0207 880 5853 amanda.hulme@addleshawgoddard.com Rebecca Williams, Partner 0161 934 6291 07809 594262 Rosanna Bryant, Partner 0113 209 2048 rosanna.bryant@addleshawgoddard.com Katie Osborn, Managing Associate 020 7160 3444 katie.osborn@addleshawgoddard.com Karen Brown, Managing Associate 020 7160 3346 karen.brown@addleshawgoddard.com Jenny Taylor, Associate 0161 934 6205 Mobile: 07709 332370 Paul Harris, Associate 020 7160 3445 paul.harris@addleshawgoddard.com Harriet Loukes, Associate 0113 209 4936 harriet.loukes@addleshawgoddard.com Sarah Madden, Associate 020 7160 3388 sarah.madden@addleshawgoddard.com 2013 Addleshaw Goddard LLP. All rights reserved. Addleshaw Goddard LLP is a limited liability partnership registered in England and Wales (with registered number OC318149) and is regulated by the Solicitors Regulation Authority. Ref. 440721. Extracts may be copied with prior permission and provided their source is acknowledged. All material is by Addleshaw Goddard LLP lawyers, and is made available for information only. Existing law is stated as it applies in England and Wales at the date of publication. While provided in good faith and believed to be accurate, the application of the material to any specific situation depends on the law as it applies or is interpreted at any given date and also depends on the precise facts and circumstances applicable in that situation and any other relevant factors. It may be affected by detail which, for reasons of space, it has not been possible to include. Accordingly, it should not be acted on or relied upon without further specific advice. If we can be of further assistance, please contact the partner with whom you normally deal or any of the persons listed. Addleshaw Goddard LLP is not authorised under the Financial Services and Markets Act 2000, but we are able in certain circumstances to offer a limited range of investment services to clients because we are members of The Law Society. We can provide these investment services if they are an incidental part of the professional services we have been engaged to provide.