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COBS 9.3 Guidance on assessing suitability

COBS 9.3.1G
  1. (1)

    A transaction may be unsuitable for a client because of the risks of the designated investments involved, the type of transaction, the characteristics of the order or the frequency of the trading.

  2. (2)

    In the case of managing investments, a transaction might also be unsuitable if it would result in an unsuitable portfolio.

[Note: recital 57 to the MiFID implementing Directive]

Churning and switching

COBS 9.3.2G
  1. (1)

    A series of transactions that are each suitable when viewed in isolation may be unsuitable if the recommendation or the decisions to trade are made with a frequency that is not in the best interests of the client.

  2. (2)

    A firm should have regard to the client's agreed investment strategy in determining the frequency of transactions. This would include, for example, the need to switch a client within or between packaged products.

[Note: recital 57 to the MiFID implementing Directive]

Income withdrawals, short-term annuities and uncrystallised funds pension lump sum payments3

COBS 9.3.3G

When a firm is making a personal recommendation to a retail client about income withdrawals, uncrystallised funds pension lump sum payments3 or purchase of short-term annuities, it should consider all the relevant circumstances including:

  1. (1)

    the client's investment objectives, need for tax-free cash and state of health;

  2. (2)

    current and future income requirements, existing pension assets and the relative importance of the plan, given the client’s financial circumstances;

  3. (3)

    the client’s attitude to risk, ensuring that any discrepancy is clearly explained between his or her3 attitude to an income withdrawal, uncrystallised funds pension lump sum payment3 or purchase of a short-term annuity and other investments.

Loans and mortgages

COBS 9.3.4G

When considering the suitability of a particular investment product which is linked directly or indirectly to any form of loan, mortgage or home reversion plan, a firm should take account of the suitability of the overall transaction. The firm should also have regard to any applicable suitability rules in MCOB.

2Investments subject to restrictions on retail distribution2

COBS 9.3.5G
  1. (1)

    Firms should note that restrictions and specific requirements apply to the retail distribution of certain investments:2

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    1. (a)

      non-mainstream pooled investments are subject to a restriction on financial promotions (see section 238 of the Act and COBS 4.12);

    2. (b)

      non-readily realisable securities are subject to a restriction on direct offer financial promotions (see COBS 4.7);

    3. (c)

      contingent convertible instruments and CoCo funds are subject to a restriction on sales and on promotions (see COBS 22.3);

    4. (d)

      mutual society shares are subject to specific requirements in relation to dealing and arranging activities (see COBS 22.3);4

    5. (e)

      deferred shares issued by a credit union are subject to specific requirements in relation to dealing and arranging activities (see CREDS 3A.5);4

    6. (f)

      credit union subordinated debt is subject to a restriction on direct offer financial promotions (see CREDS 3A.5).4

  2. (2)

    A firm should be satisfied that an exemption is available before recommending an investment subject to a restriction on distribution to a retail client, noting in particular that a personal recommendation to invest will generally incorporate a financial promotion.2

  3. (3)
    1. (a)

      In addition to assessing whether the promotion is permitted, a firm giving advice on a designated investment subject to a restriction on distribution 2 should comply with their obligations in COBS 9 and ensure any personal recommendation is suitable for its client.

      2
    2. (b)
        2
      1. (i)

        In considering its obligations under COBS 9, a firm purchasing a designated investment subject to a restriction on distribution on behalf of a retail client as part of a discretionary management agreement should exercise particular care to ensure the transaction is suitable and in that client’s best interests, having regard to the FCA’s view that such designated investments pose particular risks of inappropriate distribution.2

      2. (ii)

        A restriction on promotion does not affect a transaction where there has been no prior communication with the client in connection with the investment by the firm or a person connected to the firm. Nonetheless, if promotion of a designated investment to a retail client would not have been permitted, then the discretionary manager’s decision to purchase it on behalf of the retail client should be supported by detailed and robust justification of his assessment of suitability.2