PROTECT LEGAL AND REGULATORY REVIEW MARCH 2014. In the next 30 minutes we are going to... Talk about...

PROTECT

LEGAL AND REGULATORY REVIEW

MARCH 2014

In the next 30 minutes we are going to. . .

Talk about a sensible Ombudsman

Learn how not to be fined £30,647,400

Smirk at an FCA man getting a bo**ocking

And find out why . . .

(c) Paginator Limited 2014

These two are working at FCA


A lot to get through

All the key events

Then the “biggies”:-

Consumer Credit The HomeServe Enforcement The Add-on Insurance Market Study – Preliminary

Findings


December


Compliance Team

The Consumer Contracts (Information, Cancellation And Additional Charges)

Regulations 2013

Made 11 December 2013

Come into force on 13 June 2014

Apply to “distance contracts”

Generally do not apply to “services of a banking, credit, insurance, personal pension, investment or payment nature”

But we do need to know about three of the Regulations . . .


Regulation 38

Does apply to financial services contracts

Provides that, if a consumer withdraws from, or cancels, a main distance contract “any ancillary contracts” (e.g. a warranty) are automatically terminated

BIS Guidance says that automatic termination “does not prevent the trader from contacting the consumer for their express consent should the consumer wish to keep a warranty, for instance if the warranty purchased will cover other items” – a bit odd since the warranty has been automatically terminated!

Be aware of ICOBS 7.2.10G. “A consumer's notice to cancel a distance contract may also operate to cancel any “attached” contract which is also a distance financial services contract”. This is not “automatic” as the consumer may give notice that the cancellation is not to operate to cancel the attached contract.


Regulation 39 Provides that no sum should be payable by a consumer in a distance contract

“in addition to remuneration agreed for the trader’s main obligation unless, before the consumer became bound by the contract, the trader obtained the consumer’s express consent”. A pre-ticked box does not constitute “express consent”.

Regulation 39:-

does not apply if the main contract is a financial services contract; but does apply where the additional payment is for such services

So Regulation 39 prohibits pre-ticked boxes to purchase add-on insurance - but does not ban them if insurance is the main contract

Note, however, that ICOBS 3.1.17R already effectively bans pre-ticked boxes for distance insurance contracts (as might Principles 6 & 7 for any contract)

FCA proposes a total ban as a remedy in the Add-on Insurance Market Review (c) Paginator Limited 2014

Regulation 41

Bans premium rate help telephone lines

Does not apply to financial services contracts

But FCA announced that it “is committed to considering whether it could introduce a similar prohibition for those calling banks, insurance companies and investment brokers”.

Watch this space


Before we move into 2014 . . .

Martin Wheatley’s Christmas Message

“I want to look ahead to 2014 and what is likely to be an important period of consolidation. Less ‘exciting’ maybe than previous years – but also a platform to bed in regulatory change and move things forward”.

We need to pause to think about that . .


“A platform to bed in regulatory change”

FCA think that they have now delivered all they need you to know to be able to deliver on FCA’s expectations for conduct of business outcomes

It has given you its fundamental expectations for:-

Meeting the Principles for Business Delivering the TCF Outcomes and eliminating unfair terms Product design, (“target market”) suitability and distribution Ongoing product governance Claims, promotions and incentives

FCA will simply now enforce (brutally) against any breaches - and focus on ensuring that senior management are capable and engaged


In a few moments we will find out how FCA will “move things

forward”

Consu

mer

Behav

iour Ratios

MarketPrice

The real w

orld


But first – January 2014


The Financial Services and Markets Act 2000 (Designated Consumer Bodies) Order 2013

In force 14 January 2014.

Designates the consumer bodies (including CAB and the Consumer’s Association) which can bring “super-complaints” to the FCA, on behalf of consumers

The “super-complaint” system is now part of FCA’s role in ensuring that competition works well in the interests of consumers within the financial services market.

These bodies can submit a complaint, on behalf of consumers generally, if they consider that a feature, or combination of features, within a market for financial services in the UK is seriously damaging the interests of consumers

The decline of PPI began with a super complaint made to the OFT

FCA seems to be doing pretty well itself on competition - without any super complaints!


Financial Promotions

MoneySupermarket.com required to formally agree not to publish or broadcast misleading advertisements

FCA announced that “the quality of financial promotions will be central” to its work in 2014

FCA focus is on the fact that the context or environment in which a product is promoted can hugely affect whether the information is found by the consumer to be clear fair and not misleading

This is the reason for the need for “simple” products. You will increasingly be judged on consumer outcomes from your promotion – not product content

Always review product promotion and description from the consumer’s perspective – not yours


The PRA

Yes it does exist!!!

Announced it would replace its Handbook with a . . Rulebook!!!

The idea is to get rid of the legacy link with FSA and be seen to be entirely separate from FCA and focused on prudential supervision


http://www.bankofengland.co.uk/

ABI Good Practice Guide for Mobile Phone Insurance

Produced in response to FCA’s Thematic review

Good (and fairly brief) illustrations of how to handle the fundamental issues of:-

Product Design Product Governance Product Content Financial Promotions Consumer Comprehension Claims Handling

But of interest for another reason . . .


The Perimeter of Regulation

The Guide is specifically addressed to administrators and retailers and even to “retailers selling under the connected contract exemption”!

ABI only has any “jurisdiction” over its insurer members

Retailers undertaking connected contract sales are outside the scope of FCA regulation

Notwithstanding - FCA is increasingly focusing on the distribution models of regulated intermediaries and pressurising them to procure good consumer outcomes by unregulated retailers

ABI is merely reflecting this approach.


The Consumer Rights Bill

Introduced into Parliament on 23 January

Will be subject to changes

Re-enacts the Unfair Terms in Consumer Contract Regulations 1999 with significant changes

The big change will be that “core terms” (price and cover) will be assessable for fairness unless they are “transparent” and “prominent”

Other clauses will mean that many elements of cover will no longer be regarded as core – and will be assessable for fairness however prominent they may be


February


This is where we . . .

Talk about a sensible Ombudsman;

Smirk at an FCA man getting a bo**ocking; and

Find a good question to ask candidates in the forthcoming European Parliament elections


The Sensible Ombudsman


A Speech to the Insurance Institute

More sense in 20 minutes than out of FOS in the past 10 years

Deals with the reality of changes in consumer expectation and behaviour in a digital market - and the inevitable implications for insurance

Discusses the issue from your perspective in a sensible and balanced manner

Hugely refreshing and thought provoking - anyone interested in “simple products” should read it


And now


FCA get a bo**ocking . . .

Martin Wheatley met the Treasury Select Committee!

He is told:-

FCA have not got to grips with controls over sales incentive schemes

He has failed to convince them that he can properly describe what constitutes an “advised sale”

More on incentives in a minute – so let’s look at advised sales


Advised or Non-advised?

Treasury Select Committee:-

“once customers have been taken a couple of steps through some sort of a guided process [e.g. on a website], a lot of people would feel they have been advised”

Martin Wheatley:-

“we are spending quite some time talking to the industry about whether we need to revise our guidance and make products fall clearly into one class or the other”

Treasury Select Committee:-

“We have agreed that this is a concern – I am asking you for evidence that you are bringing some clarity to the piece as uncertainty could drive firms out of the market altogether as they fear the consequences of a regulator changing its mind at a later point”


Ouch!!

Whilst it is lovely to see FCA get told off – be afraid

The last time the Treasury Select Committee humiliated the Regulator we got Principles Based Regulation in response!

Do make sure you really do understand the current distinctions between advice and a non-advised sale – many do not

Be ready for more!


And just to add to your work list . .

IMD2

It hasn’t arrived – it hasn’t gone away

Changes proposed and approved by the EU Parliament on 28 February – most not helpful

Next steps is “trialogue negotiations” – later in 2014 “once the Parliament is in place following the May Elections”

So – you can amuse yourself by asking your Euro-candidates . . .


What will your position be in the trialogue negotiations on IMD2?


Into March . . .


March – so far The Mortgage Credit Directive is made – must be UK law by 21

March 2016 – big implications if you have any interest in MPPI

FOS published its complaints data. Non-PPI complaints are down 8% and the average uphold rate in favour of the consumer is just 51%

Maybe the Treasury Select Committee should next ask FCA why it continues to cheerlead “complaining” when half of the ensuing “complaints” are groundless?

But be careful you don’t get things wrong. CPP are paying out £1.3 billion in redress and Yorkshire Building Society’s redress package (of a mere £8.4m) includes redress to all arrears customers - even those with no loss - “to avoid lengthy delays and uncertainty”


This leaves us with the “Biggies”

Consumer Credit

The HomeServe Enforcement

The Add-on Insurance Market Study – Preliminary Findings


Consumer Credit Regulated by FCA from the end of the month – a massive cultural change

for any previously unregulated firm

FCA:-

produced the final rules just one month ahead of regulation!

is pretty overwhelmed by the process - leading to neglect of other areas

admitted, in Risk Committee, that it doesn’t understand the market because it has no information gathering powers yet!!

There are particular issues for those firms which carry an FCA authorisation for insurance mediation but only undertake “low risk” consumer credit

I have produced an entry level “Desk Top Guide” to the regime(c) Paginator Limited 2014

And now – how not to be fined £30,647,400

£30,647,400


The HomeServe Enforcement

When FCA says it hopes that all it has to do in 2014 is “to bed in regulatory change and move things forward” - it assumes that nothing similar to what happened at HomeServe will ever happen again

I think there are risks that it will


What went wrong at HomeServe

“HomeServe failed to ensure that its senior management undertook adequate regulatory training, which led to a lack of regulatory knowledge and a failure adequately to identify and address issues that created a risk that customers may not be treated fairly and contributed to a culture that placed more importance on generating profits”

Cost cutting led to the redundancy of the Compliance Director!

HomeServe also “failed to identify and address inappropriate bias within the remuneration structure for the sales teams, which incentivised staff to increase the volume of products sold, irrespective of the customer’s need for the product”.


What I think

Most senior management remain either uninformed or unengaged with what FCA now assumes to be expectations bedded into firm cultures

Senior management roles remain to maintain a culture that places “more importance on generating profits”

That is a huge gap between regulatory expectation and capitalist reality

Failure to close that gap (by both FCA and senior management teams) can only lead to increasing fines and departures from the market


What is needed


Incentives Hot on the heels of the HomeServe enforcement came TR14/4 – FCA’s

update on the thematic work on incentives

FCA underlines a “lack of awareness” of the issues especially within smaller firms

Most firms are small firms!!

Even where firms are aware, and have removed or reduced sales incentives, FCA underlines the tension between compliance and profit by saying:-

“There is a question about whether the many new schemes that have eliminated or significantly reduced the amount of bonus driven by sales will last, for example if there appears to be a negative impact on profits”.


That is a regulator asking . . .

If staff or firms are not incentivised to sell financial services – will they continue to bother to do so?

This raises the key issue . .

If firms don’t sell insurance - will customers bother to buy it?


Which brings me neatly to . .


Remember what he said . .

That conduct of business expectations are now fully in place

They will simply be vigorously enforced

He said that FCA would now concentrate on “moving things forward”

Moving what forward?

To understand this we need to look at FCA’s objectives . . .


FCA’s three operational objectives

Delivering consumer protection consumer protection - securing an appropriate degree of protection for consumers

Enhancing market integritmarket integrity − protecting and enhancing the integrity of the UK financial system

Building competitive markets competitive markets − promoting effective competition in the interests of consumers


The Competition Objective is nothing to do with . . .

Meeting Rules

Running a Principled Business

Good Product Design

Excellent Claims Service

It is in fact nothing to do with what any individual firm does


It is simply market economics

It means FCA trying to establish:-

how a competitive market is built; and

how effective competition can be generated in the interests of consumers

FCA have no more idea than you or I how this can be done – but they have a legal objective to find out

They have chosen the add-on insurance market as their first go at this


If FCA don’t know how to do it – who does?


ECONOMISTS PSYCHOLOGISTS

When I say who “knows” – I mean who “has a theory”

“I predict that the economy will grow by 3%”

“I may well be proved wrong in a year’s time”


And when you apply behavioural science to commercial markets

It gives a whole new meaning to the word

“Shrink”!!!


So when you read the Add-on Market Provisional Findings . . .

It is nothing to do with your conduct of business;

The theories which are applied are not necessarily correct;

Not all necessary evidence may have been put into the equation

The findings are odd, and currently (save for GAP) pretty limited (but more to come)

But – unless you have the services of . . .


Some of these . . .

you will struggle to argue with them


So you will have to put up with me!!


The Provisional finding is based, largely, upon the following conclusions:-

consumers face difficulties in engaging with financial services;

38% of add-on buyers said they had not thought about buying insurance before the day of their purchase compared with just 15% of stand-alone buyers;

consumers’ understanding of policies is poor for both add-on and stand-alone products;

weak consumer engagement increases the point of sale advantage enjoyed by selling add-ons; and

FCA is less concerned about travel insurance (which consumers buy frequently, and are broadly familiar with) than the other products (with which they are less familiar and often are not bought).

I would conclude from this . .

Consumers need to engage more with financial services and they need to be encouraged to think about buying insurance;

their understanding of product content is poor however they purchase their insurance and the point of sale increases “engagement” with financial services;

if consumers become more familiar with an insurance product, they will more often purchase it, and then the regulator would have less concern regarding consumer engagement with it; and

from this you would think that anything firms can do to assist the regulator in remedying “poor engagement” would be of value - and that the point of sale appears to be a potentially very effective place to do this


You would think the conclusion would be

to encourage consumers to engage with financial services at the point of sale; but

to apply the most rigorous conduct of business regulation at the point of sale -

particularly as FCA say it “found little evidence of consumers saying they were actively pressurised into buying insurance at the point of sale or are dissatisfied with their purchasing experience”!


So why do FCA reach a different conclusion?

Because this is not a conduct of business investigation

It is a competition investigation

Focused on just one thing . . .

Getting the price down!!


Theory says . . .

Increasing the outlets - decreases the price

That is what the economists are saying to FCA

Get more competition with the point of sale - and prices will come down

You can’t really argue with them – because (in their world) this is right

But that theory is of no value . .


Unless this man tells FCA . .

You might want consumers to engage with financial services . . .

But they don’t, and they won’t

They are not risk aware until risk is brought to their attention

The only way to engage consumers with financial services is . . .

. . . to engage with them!!!


Where that risk relates to purchases

The only way to engage with consumers is at the point of sale - where and when the

customer will briefly be prepared to focus on that risk


So . . .

I have reached a conclusion totally at odds to that of FCA on the basis of almost the same evidence

My conclusion is just as logical as is theirs

But mine is more likely to be right

How can I say this?

Because . . . .


I said “almost the same evidence” . .

MS14/1 does not factor consumer inertia into its equation

This was the “mistake” which the Competition Commission made - and which now leaves millions exposed

I doubt this is a “mistake” by FCA - but comes from inbuilt prejudice against the add-on market and a preference for “stand-alone” solutions

But failure to factor inertia into the equation totally distorts the integrity of the evidence upon which its conclusions are drawn


You must please . . .

engage with FCA on this

Concerns which FCA have with the add-on market will not be solved by distorting the market

Inertia means that consumers will not respond to distortion

Make sure that FCA understand that less engagement with financial services and with risk will be the outcome

Of course FCA will say “but if there is no competition because of consumer inertia, then our concern will remain that the price is too high at the point of sale”


My answer to that?

I agree!!

But I also agree that :-

the products are currently too complex for the point of sale;

that consumer expectations are high, and are increasing; and

that the point of sale presents a number of real dangers for abuse

So I would go on to ask FCA . . .


The real question to be answered

Is it better for FCA:-

to accept consumer inertia - and that the point of primary product sale is a key moment of engagement; and

to demand that distributors deliver genuine and improved products and consumer outcomes for the money they earn

or to:-

drive point of sale distributors from the marketplace; and

leave even more consumers unengaged with financial services?


To conclude . . .

Only three firms are listed in MS14/1 as having responded to FCA’s call for evidence

I would suggest that, if you don’t engage now in a debate with FCA on an issue which FCA admit it is still trying to understand, then you will live with what . . .


He


And, even worse, he


Tells them – for a very long time to come

www.paginator.co.uk

Thank you


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