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COB 6.12 Treating with-profits policyholders fairly

2

Application

COB 6.12.1 R

This section applies to a firm carrying on with-profits business.

COB 6.12.2 R

This section applies to an EEA insurer, but only in so far as responsibility for the matter in question has not been reserved to the firm'sHome State regulator by a European Community instrument.

COB 6.12.3 R

This section does not apply to with-profits business that consists of effecting or carrying out Holloway sickness policies.

COB 6.12.4 R

This section does not apply if, and to the extent that, it would affect a with-profits policyholder's contractual rights under, or in respect of, a with-profits policy.

COB 6.12.5 G

COB 6.12.4 R means, for example, that this section does not affect a with-profits policyholder's right to a minimum amount guaranteed on death, retirement or maturity. Nor does it affect a firm's practice of making deductions in the calculation of surrender values for the purpose of enhancing maturity payments, if:

  1. (1)

    the firm has reasonably exercised its discretion to make those deductions;

  2. (2)

    those deductions have been made in a clear, fair, lawful and consistent way, over a period of time;

  3. (3)

    those deductions have been made in accordance with the firm's previous statements to policyholders (if any); and

  4. (4)

    (as a result of (1) to (3)), the fact of those deductions, and the firm's right to make them, now form part of the implied terms of the with-profits policies affected.

COB 6.12.6 G

Some of this section may not be relevant to a non-directive friendly society. Such a firm is, for example, not required by COB 6.10 to produce a PPFM.

Purpose

COB 6.12.7 G

The rules and guidance in this section are intended to secure an appropriate degree of protection for actual and potential with-profits policyholders and to promote confidence among them.

Introduction

COB 6.12.8 G

This section is directed only towards the protection of actual and potential with-profits policyholders and does not affect a firm's obligations to its other actual and potential policyholders.

COB 6.12.9 G

Principle 6 (Customers' interests) requires a firm to pay due regard to the interests of its customers and to treat them fairly. Principle 7 (Communications with clients) requires a firm to pay due regard to the information needs of its clients and to communicate information to them in a way that is clear, fair and not misleading. Principle 8 (Conflicts of interest) requires a firm to manage conflicts of interest fairly.

COB 6.12.10 G

The rules and guidance in this section supplement the Principles in their application to with-profits business and in their application to the relationship between a firm and its actual and potential with-profits policyholders. However, compliance with the rules and guidance in this section will not necessarily ensure compliance with the Principles.

COB 6.12.11 G

For example, if a firm proposes to act in a particular way, when it considers whether its proposals will be consistent with Principle 6 (Customers' interests), it should also consider:

  1. (1)

    whether its proposals are consistent with its contractual obligations to its with-profits policyholders and its wider bargain with them;

  2. (2)

    whether its proposals would undermine, or materially reduce the value of, a with-profits policyholder's contractual rights;

  3. (3)

    whether its proposals are consistent with its previous disclosures to its with-profits policyholders and its previous approach to the same issue;

  4. (4)

    whether it will be acting entirely within the scope of any discretion that it may exercise and whether it will be exercising that discretion for the purpose for which it was granted or reserved; and

  5. (5)

    any other material factor that may be relevant to the fair treatment of its with-profits policyholders.

COB 6.12.12 G

Other parts of the Handbook are also relevant to the fair treatment of with-profits policyholders, including:

  1. (1)

    PRIN and SYSC;

  2. (2)

    PRU 2 (Capital), PRU 4 (Market risk) and PRU 7 (Insurance risk);

  3. (3)

    Part I of IPRU(INS) 3 (Long-term insurance business) (Identification and application of assets and liabilities);

  4. (4)

    Part V of IPRU(FSOC) 4 (Financial prudence) (Separation between long-term insurance business assets and other assets);

  5. (5)

    COB 6.5 (Content of key features and important information: life policies, schemes, ISA and CTF cash deposit components and stakeholder pension schemes) and COB 8 (Reporting to customers);

  6. (6)

    DISP 1 (Complaint handling procedures for firms) and DISP 3.8 (Determination by the Ombudsman); and

  7. (7)

    ENF 20 (Unfair terms in consumer contracts).

General approach to operating a with-profits fund

COB 6.12.13 R

Subject to COB 6.12.15 R, a firm must not change its PPFM unless that change is justified, in the reasonable opinion of the firm's governing body, by the need to:

  1. (1)

    respond to changes in the business or economic environment;

  2. (2)

    protect the interests of policyholders; or

  3. (3)

    change the firm's with-profits practices better to achieve its with-profits principles.

COB 6.12.14 G

A firm should:

  1. (1)

    monitor the business and economic environment continuously; and

  2. (2)

    maintain procedures that will enable it to identify promptly, and bring to the attention of its senior managers or its governing body, all material legal, regulatory, tax and other developments that are relevant to the conduct of its with-profits business.

COB 6.12.15 R

Notwithstanding COB 6.12.13 R, a firm may change its PPFM if that change:

  1. (1)

    is necessary to correct an error or omission in the PPFM; or

  2. (2)

    would improve the clarity or presentation of the PPFM without materially affecting its substance; or

  3. (3)

    is immaterial.2

COB 6.12.45 R

A firm must not make a market value reduction to the face value of the units of an accumulating with-profits policy unless:

  1. (1)

    the market value of the with-profits assets in the relevant with-profits fund is, or is expected to be, significantly less than the assumed value of the assets on which the face value of the units of the policy has been based; or

  2. (2)

    there has been, or there is expected to be, a high volume of surrenders, relative to the liquidity of the relevant with-profits fund; and

the market value reduction is no greater than is necessary to reflect the impact of (1) or (2) on the relevant surrender payment.

COB 6.12.46 G

For the purposes of COB 6.12.45 R, a firm might reasonably expect a significant change in market values if, for example, that particular market has been moving in one direction and there is reason to believe that it will continue to do so. A firm might expect a high volume of surrenders if surrender volumes have been increasing, and there is reason to think that that will continue or if some unexpected and adverse event has occurred, which is relevant to the firm or the wider business or economic environment, which is likely to prompt a material number of surrenders.

Approach to smoothing

COB 6.12.47 R

A firm must specify, in its PPFM, the with-profits principles and with-profits practices that it will use to smooth maturity payments and surrender payments. That specification must reflect the requirements of COB 6.12.17 R (6) and include:

  1. (1)

    the smoothing policy applied to each of the different types of with-profits policy effected by the firm, including any specimen with-profits policies used for the purposes of COB 6.12.24 R (1)(b);

  2. (2)

    the limits (if any) applied to the total cost of, or excess from, smoothing; and

  3. (3)

    any limits applied to any changes in the level of maturity payments between one period and another.

Conditions relevant to distributions

COB 6.12.48 R

A firm must:

  1. (1)

    not make a distribution from a with-profits fund, unless the whole of the cost of that distribution can be met without eliminating the regulatory surplus in that with-profits fund; and

  2. (2)

    ensure that the amount distributed to policyholders from a with-profits fund is not less than the required percentage of the total amount distributed (see COB 6.12.56 R).

COB 6.12.49 R

A realistic basis life firm must not make a distribution from a with-profits fund to any person who is not a with-profits policyholder, unless the whole of the cost of that distribution (including the cost of any obligations that will or may arise from the decision to make a distribution) can be met from the excess of the realistic value of assets over the realistic value of liabilities in that with-profits fund.

COB 6.12.50 R

In COB 6.12.49 R, a distribution to a person who is not a with-profits policyholder includes a transfer of assets out of a with-profits fund that is not made to satisfy a liability of that fund.

COB 6.12.51 R

Subject to COB 6.12.53 R, and for the purposes of COB 6.12.48 R (2), a firm must determine the amount to be distributed:

  1. (1)

    in the case of a distribution, all or part of which is in the form of a transfer of assets out of the with-profits fund, by determining the fair market value of the assets that will be transferred; and

  2. (2)

    in the case of a distribution, all or part of which is in the form of an increase in the regulatory value of liabilities of the with-profits fund, by determining the amount by which the regulatory value of liabilities of the long-term insurance fund would increase as a result of the distribution, if (for these purposes only) the mathematical reserves were calculated using the long-term gilt yield, net of tax (if that is appropriate), instead of the rate of interest prescribed by PRU 7.3.33 R.

COB 6.12.52 G

COB 6.12.51 R (2) applies, in particular, to distributions that take the form of a reversionary bonus addition to conventional with-profits policies.

COB 6.12.53 R

Notwithstanding COB 6.12.51 R, a firm may determine the amount to be distributed in a different way, if:

  1. (1)

    it can show that that is consistent with its established practice; and

  2. (2)

    that established practice is explained in its PPFM.

COB 6.12.54 R

If, on a distribution, a firm incurs a tax liability on a transfer to shareholders, it must not attribute that tax liability to a with-profits fund.

COB 6.12.55 R

Notwithstanding COB 6.12.54 R, a firm may attribute a tax liability to a with-profits fund if:

  1. (1)

    the tax liability was incurred on a transfer to shareholders;

  2. (2)

    the firm can show that attributing the tax liability to that with-profits fund is consistent with its established practice;

  3. (3)

    that established practice is explained in the firm's PPFM; and

  4. (4)

    that liability is not charged to asset shares.

Distribution ratios

COB 6.12.56 R

The required percentage referred to in COB 6.12.48 R (2) is, for each with-profits fund:

  1. (1)

    the percentage (if any) required in respect of that fund by:

    1. (a)

      the firm's articles of association, registered rules or other equivalent instrument; or

    2. (b)

      a relevant order made by a court of competent jurisdiction;

  2. (2)

    if (1) does not apply, the percentage specified in the firm's PPFM, if that percentage reflects the firm's established practice;

  3. (3)

    if (1) and (2) do not apply, not less than 90 per cent.

Requirement relating to distribution of an excess surplus

COB 6.12.57 R

At least once a year (or, in the case of a non-directive friendly society, at least once in every three years), a firm's governing body must determine, whether the firm's with-profits fund, or any of the firm's with-profits funds, has an excess surplus.

COB 6.12.58 R

A firm will have an excess surplus in a with-profits fund if, and to the extent that:

  1. (1)

    the regulatory surplus in that with-profits fund;

  2. (2)

    the other financial resources of the firm that are applied to that with-profits fund; and

  3. (3)

    any other financial resources that are expected to be made available for the benefit of that with-profits fund in the event of reasonably foreseeable adverse experience;

exceed:

  1. (4)

    the amount required to meet the higher of any relevant enhanced capital requirement or individual capital assessment; and

  2. (5)

    the amount necessary, in the reasonable opinion of the firm's governing body, to:

    1. (a)

      support the current and future insurance business of the firm or the relevant with-profits fund;

    2. (b)

      maintain the financial strength of the firm or the relevant with-profits fund; or

    3. (c)

      address any other matters relevant to policyholders' interests or security.

COB 6.12.59 R

A firm must specify, in its PPFM, the matters, or types of matter, that it may regard as relevant for the purposes of COB 6.12.58 R (5)(c).

COB 6.12.60 E
  1. (1)

    If a with-profits fund has an excess surplus, and to retain that surplus would be a breach of Principle 6 (Customers' interests), the firm should:

    1. (a)

      make a distribution from that with-profits fund (unless the conditions in COB 6.12.48 R and COB 6.12.49 R cannot be met); or

    2. (b)

      carry out a reattribution.

  2. (2)

    Compliance with (1) may be relied on as tending to establish compliance with Principle 6 (Customers' interests).

  3. (3)

    Contravention of (1) may be relied on as tending to establish a contravention of Principle 6 (Customers' interests).

Charges to a with-profits fund

COB 6.12.61 R

A firm must not charge a cost to a with-profits fund unless, in the reasonable opinion of the firm's senior management, the firm has incurred, or it will incur, that cost in the operation of that with-profits fund.

COB 6.12.62 G

COB 6.12.61 R does not prevent a firm from charging a fair proportion of its overheads (including executive remuneration) to a with-profits fund.

COB 6.12.63 R

To ensure that costs are fairly and consistently apportioned between with-profits funds, and between with-profits policyholders and shareholders, a firm must establish, maintain and disclose in its PPFM, cost apportionment principles that will enable it to determine which costs are, or may be, charged to a with-profits fund and which costs are, or may be, charged to the other parts of its business or its shareholders.

COB 6.12.64 R

If a firm makes charges to a with-profits fund for the cost of guarantees or the use of capital, it must review those charges regularly to ensure that they are adequate, fair and lawful.

COB 6.12.65 G

It is for a firm to decide when, and how often, to review its guarantee charges, taking into account its circumstances and the wider business or economic environment.

COB 6.12.66 R
  1. (1)

    A firm must not pay compensation or redress from a with-profits fund .

  2. (2)

    In (1), and for the purposes of COB 6.12.67 R, compensation and redress include the costs of assessing the extent of any compensation or redress due, and the costs of considering or defending compensation or redress claims.

COB 6.12.67 R

Notwithstanding COB 6.12.66 R, a firm may pay compensation or redress due to a with-profits policyholder, or former with-profits policyholder:

  1. (1)

    from its inherited estate (if any); or

  2. (2)

    from assets attributable to shareholders, whether or not they are held within a long-term insurance fund; or

  3. (3)

    from assets that would otherwise be attributable to asset shares, if, in the reasonable opinion of the firm's governing body, that compensation or redress cannot be paid from the assets in (1) or (2), or from any other source.

COB 6.12.68 G

COB 6.12.66 R does not apply to ex gratia or rectification payments. A firm may, therefore, correct an erroneous underpayment to a with-profits policyholder, or former with-profits policyholder, using assets in a with-profits fund.

COB 6.12.69 G

For the purposes of COB 6.12.67 R (3), a firm's governing body should assess whether compensation or redress can be paid from the firm's inherited estate, assets attributable to shareholders or any other source by reference to:

  1. (1)

    its ability to continue to meet the higher of any relevant enhanced capital requirement or individual capital assessment; and

  2. (2)

    any other factors relevant to policyholders' interests.

COB 6.12.70 R

A firm that is not a mutual must not charge to a with-profits fund any amounts paid or payable to a skilled person in connection with a report under section 166 of the Act (Reports by skilled persons) if:

  1. (1)

    the need for the report derives wholly or partly from a material failure to keep adequate records;

  2. (2)

    the principal purpose of the report is to identify what action, if any, may be necessary as a result of the firm's non-compliance with its obligations under the regulatory system;

  3. (3)

    the report indicates that the firm has, or may have, materially failed to satisfy its obligations under the regulatory system; or

  4. (4)

    it is reasonable to assume that the report may be relied upon by the FSA in connection with its enforcement functions.

COB 6.12.71 G

If a report under section 166 of the Act (Reports by skilled persons) does not relate entirely to insurance business being carried on in a with-profits fund, a firm should charge a fair proportion of the overall cost of the report to the fund, but only if that would be consistent with COB 6.12.70 R.

COB 6.12.72 G

If a firm has properly charged an amount to a with-profits fund, but circumstances later show that the charge should not have been made (see COB 6.12.70 R and COB 6.12.71 G), the firm should fully reimburse the with-profits fund.

New business

COB 6.12.73 R

If a firm proposes to effect new contracts of insurance in an existing with-profits fund, it must only do so on terms that are, in the reasonable opinion of the firm'sgoverning body, unlikely to have a material adverse affect on the interests of its existing with-profits policyholders.

COB 6.12.74 G

In some circumstances, it may be difficult or impossible for a firm to mitigate the risk of a material adverse affect on its existing, or new, with-profits policyholders, unless it establishes a new bonus series or with-profits fund. The factors that might cause a firm to establish a new bonus series or with-profits fund include:

  1. (1)

    that the current investment outlook is not adequately reflected in existing premium rates. For example, a new high, or low, inflation environment, greater volatility of investment returns or a materially altered investment mix, might mean that the bonus potential for new and existing with-profits policies are materially different;

  2. (2)

    high acquisition costs on the new with-profits policies, which would place an undue burden on the financial resources of the relevant with-profits fund or be detrimental to existing with-profits policyholders;

  3. (3)

    that the firm has a high level of guarantees or options in its existing with-profits policies, which might place an excessive burden on new with-profits policies, or vice versa;

  4. (4)

    the level of charges on the new with-profits policies, or the pattern of their emergence, if that might create a material risk of noncompliance with COB 6.12.76 G; or

  5. (5)

    that existing policyholders might be disadvantaged by an adjustment to the balance of the investments held within the particular with-profits fund, which would result from the decision to materially increase the number of new with-profits policies effected by the firm.

COB 6.12.75 G

Circumstances, in which it may be appropriate to establish a new with-profits fund, are likely to arise when the potential risks to new or existing with-profits policyholders are likely to be too great for the same with-profits fund to provide, adequately, for the interests of the two groups of policyholders, even after allowing for the beneficial effects of diversification (if any). Such potential risks are likely to arise from significant differences in the terms and conditions of the new and existing with-profits policies, including the basis on which charges are levied and reviewed.

COB 6.12.76 G

When a firm prices the new insurance business that it proposes to effect in an existing with-profits fund, it should estimate the volume of new insurance business that it is likely to effect and then build in adequate margins that will allow it to recover any acquisition costs to be charged to the with-profits fund.

COB 6.12.77 G

When a firm sets a target volume for new insurance business in an existing with-profits fund, it should pay particular attention to the risk of disadvantage to existing with-profits policyholders. Those policyholders might be disadvantaged, for example, by the need to retain additional capital to support a rapid growth in new business, when that capital might have been distributed in the ordinary course of the firm's existing business.

COB 6.12.78 G

When a firm determines its strategy for new insurance business in an existing with-profits fund, it should take particular account of:

  1. (1)

    the capital support available; and

  2. (2)

    any benefits that may arise if, for example, the different types of new insurance business complement each other, for example, in direct financial terms or by the reduction of risk.

COB 6.12.79 G

A firm's underwriting policy should remain reasonably consistent over time. Existing with-profits policyholders should not be exposed to the risk that a significant change in underwriting standards for new insurance business in the same with-profits fund will cause deterioration in experience that was not allowed for in the premium rates for that new business.

Relationship of a with-profits fund with the firm and any connected persons

COB 6.12.80 G

If a firm, or a connected person, provides support to a with-profits fund (for example, by a contingent loan), the fund might take on more risk, for example, by investing in volatile assets. However, that would not be appropriate if the support will be repaid, leaving policyholders to bear all of the risks they have been exposed to. Therefore, no reliance should be placed on that support when the firm assesses the with-profits fund's financial position unless there are clear and unambiguous criteria governing any repayment obligations to the support provider. The degree of reliance placed on that support should depend on the subordination of the support to the fair treatment of with-profits policyholders and clarification of what fair treatment means in various circumstances. For a realistic basis life firm this would normally be evidenced by the liability for such support being capable, under stress, of a progressively lower valuation in the future policy-related liabilities.

COB 6.12.81 G

Subject to COB 6.12.80 G, if assets from outside a with-profits fund are made available to support that fund, a firm should manage the fund disregarding the liability to repay those assets, at least in so far as that is necessary for its policyholders to be treated fairly.

COB 6.12.82 G

A parent undertaking should avoid creating an expectation that it will support a subsidiary unless formal arrangements are in place to ensure that that support will be provided, if it is required.

COB 6.12.83 R

A firm carrying on with-profits business must not:

  1. (1)

    make a loan to a connected person using assets in a with-profits fund; or

  2. (2)

    give a guarantee to, or for the benefit of, a connected person, where the guarantee will be backed using assets in a with-profits fund;

unless that loan or guarantee:

  1. (3)

    will be on commercial terms;

  2. (4)

    will, in the reasonable opinion of the firm's senior management, be beneficial to the with-profits policyholders in the relevant with-profits fund; and

  3. (5)

    will not, in the reasonable opinion of the firm's senior management, expose those policyholders to undue credit or group risk.

Other guidance on the conduct of with-profits business

COB 6.12.84 G

When a firm determines its investment strategy, and the acceptable level of risk within that strategy, it should take into account:

  1. (1)

    the extent of the guarantees in its with-profits policies;

  2. (2)

    any representations that it has made to its with-profits policyholders;

  3. (3)

    its established practice; and

  4. (4)

    the amount of capital support available.

COB 6.12.85 G

A firm should only change its investment strategy when that is necessary or appropriate to take account of material changes in its economic circumstances or the wider economic environment, changes in policyholder utilisation of policy options or changes in the level of capital support available to the with-profits fund where further support arrangements are not in place under an insurance business transfer scheme or a shareholder commitment described in the firm's PPFM.

COB 6.12.86 G

If a firm is considering using with-profits assets to finance the purchase of another business, directly, or by or through a connected person, or if a firm is considering whether it should retain such an investment, it should consider whether the purchase or retention would be, or will remain, fair to its with-profits policyholders. When a firm makes that assessment, it should consider:

  1. (1)

    the size of the investment in relation to the with-profits fund;

  2. (2)

    the expected rate of return on the investment;

  3. (3)

    the risks associated with the investment, including liquidity risk, the capital needs of the acquired business and the difficulty of establishing fair value (if any);

  4. (4)

    any costs that would result from divestment;

  5. (5)

    whether an actuary, appointed by the firm under SUP 4 (Actuaries), would regard the investment as suitable for the with-profits fund;

  6. (6)

    whether the investment has been, or will be, disclosed to with-profits policyholders;

  7. (7)

    notwithstanding (6), whether a knowledgeable existing with-profits policyholder in that with-profits fund would regard it as an appropriate investment;

  8. (8)

    in the case of a proprietary firm, whether it would be more appropriate for the investment to be made using assets other than those in a with-profits fund; and

  9. (9)

    any other material factors.

COB 6.12.87 G

If the firm carries out non-profit insurance business in a with-profits fund, it should review the profitability of the non-profit insurance business regularly. When it does so, the firm should consider whether, for example, its charges for that business should be adjusted, if adjustment is permitted, to maintain fairness to non-profit and with-profits policyholders. If the firm's review suggests that a change should be made, but the difference between the existing arrangements and the new arrangements is not material, the firm may choose whether or not to make it.

COB 6.12.88 G

If a firm has reinsured its with-profits insurance business into another insurance undertaking, it should take reasonable steps to discharge its responsibilities to its with-profits policyholders, in respect of the reinsured business. Those steps should include maintaining adequate controls.

Major changes in with-profits funds

COB 6.12.89 R

A firm must not enter into a material transaction relating to a with-profits fund unless, in the reasonable opinion of the firm's governing body, the transaction is unlikely to have a material adverse effect on the interests of that fund's existing with-profits policyholders.

COB 6.12.90 R

For the purposes of COB 6.12.89 R, a material transaction includes a series of related non-material transactions which, if taken together, are material.

COB 6.12.91 G

For the purposes of COB 6.12.89 R and COB 6.12.90 R, material transactions include:

  1. (1)

    a significant bulk outwards reinsurance contract;

  2. (2)

    inwards reinsurance of with-profits business from another insurance undertaking;

  3. (3)

    a financial engineering transaction that would materially change the profile of any surplus expected to emerge on the with-profits fund's existing insurance business; and

  4. (4)

    a significant restructuring of the with-profits fund, especially if it involves the creation of new sub-funds.

COB 6.12.92 G

So that it can consider whether a proposed material transaction might adversely affect the interests of its with-profits policyholders, a firm should obtain a report from an actuary appointed under SUP 4 (Actuaries) or another appropriate professional adviser.

COB 6.12.93 G

A firm should also consider whether a knowledgeable existing with-profits policyholder in that with-profits fund would conclude that the proposed material transaction would materially affect his interests, whether or not the transaction will be disclosed to policyholders.

Ceasing to effect new contracts of insurance in a with-profits fund

COB 6.12.94 R

A firm must:

  1. (1)

    inform the FSA and its with-profits policyholders within 28 days; and

  2. (2)

    submit a run-off plan to the FSA as soon as reasonably practicable and, in any event, within three months,

of first ceasing to effect new contracts of insurance in a with-profits fund.

COB 6.12.95 R

For the purposes of COB 6.12.94 R, a firm will be taken to have ceased to effect new contracts of insurance in a with-profits fund:

  1. (1)

    when any decision by the governing body to cease to effect new contracts of insurance takes effect; or

  2. (2)

    where no such decision is made, when the firm is no longer:

    1. (a)

      actively seeking to effect new contracts of insurance in that fund, or

    2. (b)

      effecting new contracts of insurance in that fund, except by increment.

COB 6.12.96 G

A firm should not avoid taking a formal decision to cease to effect new contracts of insurance in a with-profits fund in an attempt to avoid the requirements of COB 6.12.94 R.

COB 6.12.97 G

A firm should contact the FSA to discuss whether it has, or it should be taken to have, ceased to effect new contracts of insurance, for the purposes of COB 6.12.94 R if:

  1. (1)

    COB 6.12.95 R (2) may apply;

  2. (2)

    it is no longer effecting a material volume of new with-profits policies in a particular with-profits fund, other than by reinsurance;

  3. (3)

    it is effecting only new reinsurance business in a particular with-profits fund; or

  4. (4)

    it cedes by way of reinsurance most of the new with-profits policies it continues to effect.

COB 6.12.98 R

The run-off plan required by COB 6.12.94 R (2) must:

  1. (1)

    demonstrate how the firm will ensure a full and fair distribution of the closed with-profits fund, and its inherited estate (if any); and

  2. (2)

    be approved by the firm's governing body.

COB 6.12.98A G

A firm should also include the information described in SUP App 2.15 in its run-off plan.1

COB 6.12.99 G

When a firm tells its with-profits policyholders that it has ceased to effect new contracts of insurance in a with-profits fund, it should also explain:

  1. (1)

    why it has done so;

  2. (2)

    what changes it has made, or proposes to make, to the fund's investment strategy (if any);

  3. (3)

    how closure may affect with-profits policyholders (including any reasonably foreseeable effect on future bonus prospects);

  4. (4)

    the options available to with-profits policyholders and an indication of the potential costs associated with the exercise of each of those options; and

  5. (5)

    any other material factors that a policyholder may reasonably need to be aware of before deciding how to respond to this information.

COB 6.12.100 G

A firm may not be able to provide its with-profits policyholders with all of the information described in COB 6.12.99 G until it has prepared the run-off plan required by COB 6.12.94 R (2). In those circumstances, the firm should:

  1. (1)

    tell its with-profits policyholders that that is the case;

  2. (2)

    explain what is missing and give a time estimate for its supply; and

  3. (3)

    provide the missing information as soon as possible, and within the time estimate given.

COB 6.12.101 G

Revoked on 30.06.05

A run-off plan submitted to the FSA under COB 6.12.94 R (2) should:

  1. (1)

    identify, and explain, any material differences between the firm's run-off plan and the relevant parts of its PPFM;

  2. (2)

    identify, and explain, any actual or potential changes in the firm's maturity or surrender payment target ranges and its smoothing policy;

  3. (3)

    explain how the fact of run-off affects the firm's investment strategy (if it does);

  4. (4)

    explain how the firm anticipates capital will become available for distribution to policyholders;

  5. (5)

    explain how the costs charged to the with-profits fund may change (if they will);

  6. (6)

    detail any new deductions to be made from surrender payments (if any) and explain how they are consistent with Principle 6 (Customers' interests) and COB 6.12.39 R to COB 6.12.45 R; and

  7. (7)

    explain how it plans to address any additional operational risks which might flow from closure.

COB 6.12.102 G

Revoked on 30.06.05

The FSA has powers, for example, under section 165 of the Act (Authority's power to require information), to require a firm that has ceased to effect new contracts of insurance in a with-profits fund to provide information on how it will ensure a full and fair distribution of that fund and its inherited estate (if any). The FSA may use that power if a firm's run-off plan does not provide sufficient evidence of a full and fair distribution or appropriate arrangements for ensuring the protection of the interests and security of its with-profits policyholders.

COB 6.12.103 G

To ensure a fair distribution, in compliance with COB 6.12.98 R (1), a firm will normally have to distribute that part of the with-profits fund that is not required to support any continuing business, including a fair proportion of any inherited estate attributable to it.

COB 6.12.104 G

To ensure a fair and prudent distribution, a firm may have to distribute a lower proportion of any inherited estate attributable to a closed with-profits fund to policyholders whose with-profits policies mature in the shorter term as compared to those whose with-profits policies mature in the longer term.

COB 6.12.105 G

If non-profit insurance business is written in a with-profits fund, a firm should take reasonable steps to ensure that the economic value of any future profits expected to emerge on the non-profit insurance business is available for distribution during the lifetime of the with-profits business.

COB 6.12.106 G

For the purposes of COB 6.12.105 G, where it is agreed by its with-profits policyholders, and subject to meeting the requirements of COB 6.12.73 R, a mutual may make alternative arrangements for continuing to carry on non-profit insurance business; and a non-directive friendly society may make alternative arrangements for continuing to carry on non-insurance related business.

COB 6.12.107 G

A firm should discuss with the FSA at an early stage any significant issues it identifies relating to its proposed distribution of a closed with-profits fund.

Provision of information to with-profits policyholders and communicating with them fairly

COB 6.12.108 G

When a firm communicates information to a customer, COB 2.1.3 R requires it to take reasonable steps to do so in a way that is clear, fair and not misleading. The guidance in the rest of this section is relevant to the application of COB 2.1.3 R to the provision of information to with-profits policyholders.

With-profits policyholders' understanding of the investment

COB 6.12.109 G

When a firm communicates information to its with-profits policyholders, it should not assume that those policyholders have a good understanding of their investment or the purpose, scope and operation of the firm's discretion. To achieve fairness, clearer explanations may be required than for some other long-term investments, especially when the firm refers to any unusual aspects of a with-profits policy.

COB 6.12.110 R

It will usually be reasonable for a firm to assume that its with-profits policyholders have made reasonable efforts to understand the information that has already been given to them. However, if there is evidence that an individual policyholder has misunderstood the information that he has been given, or that he has misunderstood the investment or any of its material characteristics, a firm should not assume that that with-profits policyholder now understands the information that he has been given.

Communications to with-profits policyholders

COB 6.12.111 G

When a firm communicates information to its with-profits policyholders, that information should properly reflect the long-term nature of the investment and the long-term nature of the firm's relationship with its with-profits policyholders. The firm's communications should also be consistent with the information that it has already given to with-profits policyholders.

COB 6.12.112 G

To promote fairness in communications with its with-profits policyholders, a firm should:

  1. (1)

    write clearly in plain language;

  2. (2)

    use personal language (for example, 'we' and 'you') to make documents easier to understand; and

  3. (3)

    use presentation and terminology that is consistent with the information that it has already provided.

COB 6.12.113 G

A firm should highlight the importance of key documents, indicating why it is important that with-profits policyholders should read and understand them.

COB 6.12.114 G

A firm should give a with-profits policyholder the opportunity, and reasonable time, to act on information provided to him in accordance with his circumstances, provided that that would not adversely affect the interests of other with-profits policyholders.

Information needs of a with-profits policyholder

COB 6.12.115 G

A firm should give a with-profits policyholder the information he might reasonably need to take a considered decision about (or get advice on) his investment, whenever that is necessary or appropriate. The information should include, where appropriate, information about any options that are available to him, and the costs or other material factors attributable to the exercise of any or all of those options.

COB 6.12.116 G

The information referred to in COB 6.12.115 G includes:

  1. (1)

    information about the performance of the with-profits policy;

  2. (2)

    a projection of the future value of the with-profits policy;

  3. (3)

    information about material changes in the circumstances of the with-profits fund, or the firm's approach to managing it, which might affect the with-profits policy and future bonus prospects;

  4. (4)

    information about any material changes in the firm's charges which might affect the with-profits policy; and

  5. (5)

    information about any material changes in the information already provided, for example, at the point of sale.