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COBS 6.2A Describing advice services

Application - Who? What?

COBS 6.2A.1RRP
  1. (1)

    1This section applies to a firm that either:

    1. (a)

      makes a personal recommendation to a retail client in relation to a retail investment product; or

    2. (b)

      provides basic advice to a retail client.

  2. (2)

    This section does not apply to a firm when it makes a personal recommendation or provides basic advice to an employee, if that recommendation or advice is provided under the terms of an agreement between the firm and that employee’s employer which is subject to the rules on consultancy charges (COBS 6.1C).2

COBS 6.2A.1ARRP

4This section does not apply to a firm when it makes a personal recommendation to a retail client in relation to a Holloway sickness policy, provided that the Holloway policy special application conditions are met.

COBS 6.2A.1BGRP

7P2P agreements are not retail investment products. This section does not apply to a firm when it is advising on P2P agreements.

Application - Where?

COBS 6.2A.2RRP

This section does not apply if the retail client is outside the United Kingdom.

Firms holding themselves out as independent

COBS 6.2A.3RRP
  1. (1)

    A firm must not hold itself out to a retail client as acting independently unless the only personal recommendations in relation to retail investment products it offers to that retail client are:

    1. (a)

      based on a comprehensive and fair analysis of the relevant market; and

    2. (b)

      unbiased and unrestricted.

  2. (2)

    Paragraph (1) does not apply to group personal pension schemes if a firm discloses information to a client in accordance with the rule on group personal pension schemes (COBS 6.1C.20AR9).

COBS 6.2A.4GRP
  1. (1)

    A firm that provides both independent advice and restricted advice should not hold itself out as acting independently for its business as a whole.

    6
  2. (1A)

    6A firm that offers an unlimited range of regulated mortgage contracts, or gives advice in relation to contracts of insurance on the basis of a fair analysis, but offers restricted advice on retail investment products should not hold itself out as acting independently for its business as a whole, for example by holding itself out as an independent financial adviser. However, it may disclose that it offers an unlimited range for regulated mortgage contracts or gives advice in relation to contracts of insurance on the basis of a fair analysis provided it makes clear in accordance with the fair, clear and not misleading rule that it provides restricted advice for retail investment products.

  3. (2)

    A firm whose relevant market is relatively narrow should not hold itself out as acting independently in a broader sense. For example, a firm “Greenfield”, which specialises in ethical and socially responsible investments could not hold itself out as “Greenfield Independent Financial Advisers”. “Greenfield - providing independent advice on ethical products” may be acceptable.

  4. (3)

    A firm that provides basic advice on stakeholder products may still use the facilities and stationery it uses for other business in accordance with the rule on basic advice on stakeholder products: other issues (COBS 9.6.17 R (2)).

COBS 6.2A.4ARRP

5In complying with COBS 6.2A.3 R, a firm which:

  1. (1)

    holds itself out to a retail client as acting independently; and

  2. (2)

    relies upon a single platform service to facilitate the majority of its personal recommendations in relation to retail investment products;

must take reasonable steps to ensure that, as appropriate, the platform service provider bases its selection of retail investment products on a comprehensive, fair and unbiased analysis of the relevant market.

COBS 6.2A.4BGRP

5When a firm considers whether a platform service provider's selection of retail investment products is based on an unbiased analysis of the relevant market, a firm should take into account any fees, commission or non-monetary benefits the platform service provider receives in relation to those retail investment products.

Describing the breadth of a firm’s advice service

COBS 6.2A.5RRP

A firm must disclose in writing to a retail client, in good time before the provision of its services in respect of a personal recommendation or basic advice in relation a retail investment product, whether its advice will be:

  1. (1)

    independent advice; or

  2. (2)

    restricted advice.

Content and wording of disclosure

COBS 6.2A.6RRP
  1. (1)

    A firm must include the term “independent advice” or “restricted advice” or both, as relevant, in the disclosure.

  2. (2)

    If a firm provides independent advice in respect of a relevant market that does not include all retail investment products, a firm must include in the disclosure an explanation of that market, including the types of retail investment products which constitute that market.

  3. (3)

    If a firm provides restricted advice, its disclosure must explain the nature of the restriction.3

  4. (4)

    If a firm provides both independent advice and restricted advice, the disclosure must clearly explain the different nature of the independent advice and restricted advice services.

Medium of disclosure

COBS 6.2A.7RRP

A firm must provide the disclosure information required by the rule on describing the breadth of a firm's advice service (COBS 6.2A.5 R) in a durable medium or through a website (if it does not constitute a durable medium) provided the website conditions are satisfied.

COBS 6.2A.8GRP

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Additional oral disclosure for firms providing restricted advice

COBS 6.2A.9RRP

If a firm provides restricted advice and engages in spoken interaction with the retail client, a firm must disclose orally in good time before the provision of its services in respect of a personal recommendation that it provides restricted advice and the nature of that restriction.

COBS 6.2A.10G

Examples of statements which would comply with COBS 6.2A.9 R include:

  1. (1)

    “I am a [Firm X] adviser offering restricted advice, which means that my advice is restricted to advice on [Firm X] [products/stakeholder products] only” or

  2. (2)

    “I am a [Firm X] adviser offering restricted advice, which means that my advice is restricted to advice on [products/stakeholder products] from a limited number of companies that [Firm X] has selected”.

Guidance on what constitutes a relevant market

COBS 6.2A.11GRP

A relevant market should comprise all retail investment products which are capable of meeting the investment needs and objectives of a retail client.

COBS 6.2A.12GRP

A relevant market can be limited by the investment needs and objectives of the retail client. For example, ethical and socially responsible investments or Islamic financial products could both be relevant markets. However, a firm would be expected to consider all retail investment products within those investment parameters.

COBS 6.2A.13GRP

For a firm not specialising in a particular market, the relevant market will generally include all retail investment products.

Guidance on providing unbiased and unrestricted advice

COBS 6.2A.14GRP

A personal recommendation on a retail investment product that invests in a number of underlying investments would not of itself meet the requirements for providing unbiased and unrestricted advice even if the retail investment product invests in a wide range of underlying investments.

COBS 6.2A.15GRP

In order to satisfy the rule on firms holding themselves out as independent (COBS 6.2A.3 R) a firm should ensure that it is not bound by any form of agreement with a retail investment product provider that restricts the personal recommendation the firm can provide or imposes any obligation that may limit the firm's ability to provide a personal recommendation which is unbiased and unrestricted.

COBS 6.2A.16GRP

A firm may be owned by, or own in whole or part, or be financed by or provide finance to, a retail investment product provider without contravening the ‘unbiased, unrestricted’ requirement provided the firm ensures that that ownership or finance does not prevent the firm from providing a personal recommendation which is unbiased and unrestricted.

COBS 6.2A.17GRP

In providing unrestricted advice a firm should consider relevant financial products other than retail investment products which are capable of meeting the investment needs and objectives of a retail client, examples of which could include national savings and investments products and cash deposit ISAs.

Guidance on using panels and/or third parties to provide a comprehensive and fair analysis of the market

COBS 6.2A.18GRP

A firm may provide a personal recommendation on a comprehensive and fair analysis basis required by the rule on firms holding themselves out as independent (COBS 6.2A.3 R) by using ‘panels’. A firm would need to ensure that any panel is sufficiently broad in its composition to enable the firm to make personal recommendations based on a comprehensive and fair analysis, is reviewed regularly, and that the use of the panel does not materially disadvantage any retail client.

COBS 6.2A.19GRP

When using a panel a firm may exclude a certain type or class of retail investment product from the panel if, after review, there is a valid reason consistent with the client's best interests rule, for doing so.

COBS 6.2A.20GRP

If a firm chooses to use a third party to conduct a fair and comprehensive analysis of its relevant market, the firm is responsible for ensuring the criteria used by the third party are sufficient to meet the requirement. For example, criteria which selected retail investment product providers on the basis of payment of a fee (or facilitation of adviser charges), whilst excluding those not paying a fee (or such a facilitation) would not meet the comprehensive and fair analysis requirement.

Record keeping

COBS 6.2A.21GRP

Firms are reminded of the general record keeping requirements in SYSC 3.2 and SYSC 9. A firm should keep appropriate records of the disclosures required by this section.

Systems and controls

COBS 6.2A.22GRP
  1. (1)

    Firms are reminded of the systems and controls requirements in SYSC.

  2. (2)

    A firm providing restricted advice should take reasonable care to establish and maintain appropriate systems and controls to ensure that if there is no retail investment product in the firm's range of products which meets the investment needs and objectives of the retail client, no personal recommendation should be made.

  3. (3)

    A firm specialising in a relevant market should take reasonable care to establish and maintain appropriate systems and controls to ensure that it does not make a personal recommendation if there is a retail investment product outside the relevant market which would meet the investment needs and objectives of the retail client.