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COBS 9.1 Application and purpose provisions

[Note: ESMA has also issued guidelines under article 16(3) of the ESMA Regulation on certain aspects of the MiFID suitability requirements. See https://www.esma.europa.eu/sites/default/files/library/2015/11/2012-387_en.pdf.]

Making personal recommendations

COBS 9.1.1 R

1This chapter applies to a firm which makes a personal recommendation in relation to a designated investment.32

Providing basic advice on a stakeholder product

COBS 9.1.2 R

If a firm makes a personal recommendation in relation to a stakeholder product, other than in the course of MiFID or equivalent third country business, it may choose to give basic advice under the rules in section 9.6 of this chapter instead of the rules in the remainder of this chapter.

Managing investments

COBS 9.1.3 R

This chapter applies to a firm which manages investments.

COBS 9.1.3A G

3This chapter does not apply to a firm which manages investments when that firm takes a decision to trade for a client and that decision relates to a P2P agreement. This is because the regulated activity of managing investments does not extend to the management of assets where those assets are P2P agreements.

Business which is not MiFID or equivalent third country business

COBS 9.1.4 R

In respect of the business of a firm which is not MiFID or equivalent third country business, this chapter applies only if:

  1. (1)

    the client is a retail client; or

  2. (2)

    the firm is managing the assets of an occupational pension scheme, stakeholder pension scheme or personal pension scheme.

Life policies for professional clients

COBS 9.1.5 R

If the firm makes a personal recommendation to a professional client to take out a life policy, this chapter applies only those rules which implement the requirements of the Insurance Mediation Directive.

COBS 9.1.6 G

If a rule implements a requirement of the Insurance Mediation Directive, a Note follows the rule indicating which provision is being implemented. COBS 7 (Insurance mediation) contains further rules implementing the Insurance Mediation Directive.

COBS 9.1.7 G

The effect of these application rules and the fact that the Insurance Mediation Directive does not apply to an insurer (unless it is involved in mediation activities) is that this chapter does not apply to an insurer when it is making a personal recommendation to a professional client to take out a life policy.

Related rules

COBS 9.1.8 G

For a firm making personal recommendations in relation to pensions, COBS 19 contains additional provisions relevant to assessing suitability and the contents of suitability reports.

COBS 9.1.9 G

COBS 7 (Insurance mediation) contains requirements relating to the basis on which certain recommendations may be made, including requirements relating to fair analysis and range and scope.

COBS 9.2 Assessing suitability

Assessing suitability: the obligations

COBS 9.2.1 R
  1. (1)

    A firm must take reasonable steps to ensure that a personal recommendation, or a decision to trade, is suitable for its client.

  2. (2)

    When making the personal recommendation or managing his investments, the firm must obtain the necessary information regarding the client's:

    1. (a)

      knowledge and experience in the investment field relevant to the specific type of designated investment or service;

    2. (b)

      financial situation; and

    3. (c)

      investment objectives;

    so as to enable the firm to make the recommendation, or take the decision, which is suitable for him.

[Note: article 19(4) of MiFID, article 12(2) of the Insurance Mediation Directive]

COBS 9.2.2 R
  1. (1)

    A firm must obtain from the client such information as is necessary for the firm to understand the essential facts about him and have a reasonable basis for believing, giving due consideration to the nature and extent of the service provided, that the specific transaction to be recommended, or entered into in the course of managing:

    1. (a)

      meets his investment objectives;

    2. (b)

      is such that he is able financially to bear any related investment risks consistent with his investment objectives; and

    3. (c)

      is such that he has the necessary experience and knowledge in order to understand the risks involved in the transaction or in the management of his portfolio.

  2. (2)

    The information regarding the investment objectives of a client must include, where relevant, information on the length of time for which he wishes to hold the investment, his preferences regarding risk taking, his risk profile, and the purposes of the investment.

  3. (3)

    The information regarding the financial situation of a client must include, where relevant, information on the source and extent of his regular income, his assets, including liquid assets, investments and real property, and his regular financial commitments.

[Note: articles 35(1), (3) and (4) of the MiFID implementing Directive]

COBS 9.2.3 R

The information regarding a client’s knowledge and experience in the investment field includes, to the extent appropriate to the nature of the client, the nature and extent of the service to be provided and the type of product or transaction envisaged, including their complexity and the risks involved, information on:

  1. (1)

    the types of service, transaction and designated investment with which the client is familiar;

  2. (2)

    the nature, volume, frequency of the client’s transactions in designated investments and the period over which they have been carried out;

  3. (3)

    the level of education, profession or relevant former profession of the client.

[Note: article 37(1) of the MiFID implementing Directive]

COBS 9.2.4 R

A firm must not encourage a client not to provide information for the purposes of its assessment of suitability.

[Note: article 37(2) of the MiFID implementing Directive]

Reliance on information1

COBS 9.2.5 R

A firm is entitled to rely on the information provided by its clients unless it is aware that the information is manifestly out of date, inaccurate or incomplete.

[Note: article 37(3) of the MiFID implementing Directive]

Insufficient information1

COBS 9.2.6 R

If a firm does not obtain the necessary information to assess suitability, it must not make a personal recommendation to the client or take a decision to trade for him.

[Note: article 35(5) of the MiFID implementing Directive]

COBS 9.2.7 G

Although a firm may not be permitted to make a personal recommendation or take a decision to trade because it does not have the necessary information, its client may still ask the firm to provide another service such as, for example, to arrange a deal or to deal as agent for the client. If this happens, the firm should ensure that it receives written confirmation of the instructions. The firm should also bear in mind the client's best interests rule and any obligation it may have under the rules relating to appropriateness when providing the different service (see COBS 10, Appropriateness (for non-advised services)).

Professional clients (MiFID and equivalent third country business)

COBS 9.2.8 R
  1. (1)

    If a firm makes a personal recommendation or manages investments for a professional client in the course of MiFID or equivalent third country business, it is entitled to assume that, in relation to the products, transactions and services for which the professional client is so classified, the client has the necessary level of experience and knowledge for the purposes of COBS 9.2.2R (1)(c).

  2. (2)

    If the service consists of making a personal recommendation to a per se professional client, the firm is entitled to assume that the client is able financially to bear any related investment risks consistent with his investment objectives for the purposes of COBS 9.2.2R (1)(b).

[Note: article 35(2) of the MiFID implementing Directive]

Friendly society life policies

COBS 9.2.9 R
  1. (1)

    When recommending a small friendly societylife policy, a firm, for the purpose of assessing suitability, need only obtain details of the net income and expenditure of the client and his dependants.

  2. (2)

    A friendly societylife policy is small if the premium:

    1. (a)

      does not exceed £50 a year; or

    2. (b)

      if payable weekly, £1 a week.

  3. (3)

    The firm must keep for five years a record of the reasons why the recommendation is considered suitable.

COBS 9.3 Guidance on assessing suitability

COBS 9.3.1 G
  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 9.3.2 G
  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 9.3.3 G

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 9.3.4 G

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 9.3.5 G
  1. (1)

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

    12
    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

COBS 9.4 Suitability reports

Providing a suitability report1

COBS 9.4.1 R

1A firm must provide a suitability report to a retail client if the firm makes a personal recommendation to the client and the client:

  1. (1)

    acquires a holding in, or sells all or part of a holding in:

    1. (a)

      a regulated collective investment scheme;

    2. (b)

      an investment trust where the relevant shares have been or are to be acquired through an investment trust savings scheme;

    3. (c)

      an investment trust where the relevant shares are to be held within an ISA which has been promoted as the means for investing in one or more specific investment trusts; or

      2
  2. (2)

    buys, sells, surrenders, converts or cancels rights under, or suspends contributions to, a personal pension scheme or a stakeholder pension scheme; or

  3. (3)

    elects to make income withdrawals, an uncrystallised funds pension lump sum payment6 or purchase a short-term annuity; or

  4. (4)

    enters into a pension transfer, pension conversion4 or pension opt-out.

[Note: article 19(8) of MiFID]

COBS 9.4.2 R

If a firm makes a personal recommendation in relation to a life policy, it must provide the client with a suitability report.

[Note: article 12(3) of the Insurance Mediation Directive]

COBS 9.4.3 R

The obligation to provide a suitability report does not apply:

  1. (1)

    if the firm, acting as an investment manager for a retail client, makes a personal recommendation relating to a regulated collective investment scheme;

  2. (2)

    if the client is habitually resident outside the EEA and the client is not present in the United Kingdom at the time of acknowledging consent to the proposal form to which the personal recommendation relates;

  3. (3)

    to any personal recommendation by a friendly society for a small life policy sold by it with a premium not exceeding £50 a year or, if payable weekly, £1 a week;

  4. (4)

    if the personal recommendation is to increase a regular premium to an existing contract;

  5. (5)

    if the personal recommendation is to invest additional single premiums or single contributions to an existing packaged product to which a single premium or single contribution has previously been paid.

Timing

COBS 9.4.4 R

A firm must provide the suitability report to the client:

  1. (1)

    in the case of a life policy, before the contract is concluded unless the necessary information is provided orally or immediate cover is necessary; or

  2. (2)

    in the case of a personal pension scheme or stakeholder pension scheme, where the rules on cancellation (COBS 15) require notification of the right to cancel, no later than the fourteenth day after the contract is concluded; or

  3. (3)

    in any other case, when or as soon as possible after the transaction is effected or executed.

[Note: article 12(3) of the Insurance Mediation Directive]

COBS 9.4.5 R

If, in respect of a life policy, the firm gives necessary information orally or gives immediate cover, it must provide a suitability report to the client in a durable medium immediately after the contract is concluded.

[Note: article 13(2) of the Insurance Mediation Directive]

COBS 9.4.6 R

In the case of telephone selling of a life policy, when the only contact between a firm and its client before conclusion of a contract is by telephone, the suitability report must:

  1. (1)

    comply with the distance marketing disclosure rules (COBS 5.1);

  2. (2)

    be provided immediately after the conclusion of the contract; and

  3. (3)

    be in a durable medium.

[Note: article 13(3) of the Insurance Mediation Directive]

Contents

COBS 9.4.7 R

The suitability report must, at least:

  1. (1)

    specify the client's demands and needs;

  2. (2)

    explain why the firm has concluded that the recommended transaction is suitable for the client having regard to the information provided by the client; and

  3. (3)

    explain any possible disadvantages of the transaction for the client.

[Note: article 12(3) of the Insurance Mediation Directive]

COBS 9.4.8 G

A firm should give the client such details as are appropriate according to the complexity of the transaction.

[Note: article 12(3) of the Insurance Mediation Directive]

COBS 9.4.9 R

If a firm is providing a suitability report in the course of insurance mediation activity, the information must be provided:

  1. (1)

    in a durable medium which is available and accessible to the client;

  2. (2)

    in a clear and accurate manner, comprehensible to the client; and

  3. (3)

    in an official language of the State of the commitment in which the contract of insurance is made or in any other language agreed by the parties.

[Note: article 13 of the Insurance Mediation Directive]

Additional content for income withdrawals

COBS 9.4.10 G

When a firm is making a personal recommendation to a retail client about income withdrawals or purchase of short-term annuities or making uncrystallised funds pension lump sum payments,6 explanation of possible disadvantages in the suitability report should include the risk factors involved in entering into an income withdrawal, purchase of a short-term annuity or making uncrystallised funds pension lump sum payments6. These may include:

  1. (1)

    the capital value of the fund may be eroded;

  2. (2)

    the investment returns may be less than those shown in the illustrations;

  3. (3)

    annuity or scheme pension rates may be at a worse level in the future;

  4. (4)

    the levels of income provided may not be sustainable; and5

    5
  5. (5)

    there may be tax implications.5

    35

COBS 9.5 Record keeping and retention periods for suitability records

COBS 9.5.1 G

A3firm to which SYSC 9 applies 3is required to keep orderly records of its business and internal organisation (see SYSC 9, General rules on record-keeping). Other firms are 3 required to take reasonable care to establish and maintain such systems and controls as are appropriate to their 3business (see SYSC 3, Systems and controls). The records may be expected to reflect the different effect of the rules in this chapter depending on whether the client is a retail client or a professional client: for example, in respect of the information about the client which the firm must obtain and whether the firm is required to provide a suitability report.

3 3 3
COBS 9.5.2 R

A1firm must retain its records relating to suitability for a minimum of the following periods:

  1. (1)

    if relating to a pension transfer, pension conversion, 4pension opt-out or FSAVC, indefinitely;

  2. (2)

    if relating to a life policy,2personal pension scheme2or stakeholder pension scheme, five years;

  3. (3)

    if relating to MiFID or equivalent third country business, five years; and

  4. (4)

    in any other case, three years.

COBS 9.5.3 R

A firm need not retain its records relating to suitability if:

  1. (1)

    the client does not proceed with the recommendation; and

  2. (2)

    they do not relate to MiFID or equivalent third country business.

COBS 9.6 Special rules for giving basic advice on a stakeholder product1

COBS 9.6.1 G

This section applies to a firm giving basic advice, which has chosen to comply with the rules in this section instead of the other rules in this chapter (see COBS 9.1.2 R).1

Range1

COBS 9.6.2 R

A firm is permitted to maintain more than one range of stakeholder products.1

COBS 9.6.3 R

A range of stakeholder products:1

  1. (1)

    may include more than one deposit-based stakeholder product;1

  2. (2)

    may include the stakeholder products of more than one stakeholder product provider;1

  3. (3)

    must not include any more than one:1

    1. (a)

      CISstakeholder product or linked life stakeholder product; or1

    2. (b)

      stakeholder CTF; or1

    3. (c)

      stakeholder pension scheme.1

COBS 9.6.4 R

When a firm provides basic advice it must:1

  1. (1)

    explain why it chose the stakeholder products and stakeholder product providers that appear in the relevant range; and1

  2. (2)

    give the client a list of the stakeholder products and stakeholder product providers that appear in that range;1

if the client asks it do so.1

Requirements on first contact1

COBS 9.6.5 R

When a firm first has contact with a retail client with a view to giving basic advice on a stakeholder product, it must give the retail client:1

  1. (1)

    the basic advice initial disclosure information (COBS 9 Annex 1), in a durable medium, together with an explanation of that information, unless:1

    1. (a)

      it has already done so and the basic advice initial disclosure information is likely still to be accurate and appropriate; or1

    2. (b)

      the contact is not face to face and is using a means of communication which makes it not practicable to provide the basic advice initial disclosure information in a durable medium; and1

  2. (2)

    an explanation of how the advice will be paid for and the fact that any commission will be disclosed.1

COBS 9.6.6 G

[deleted]4

COBS 9.6.6A G

3A firm will meet the requirements in respect of its obligation to provide written disclosure in the rules on describing the breadth of advice (COBS 6.2A.5 R) and content and wording of disclosure (COBS 6.2A.6 R) by providing its basic advice initial disclosure information (in COBS 9 Annex 1 R).

COBS 9.6.7 R

[deleted]4

2 2 2 1
COBS 9.6.8 R

If a firm's first contact with a retail client is not face to face, it must:1

  1. (1)

    inform the client at the outset:1

    1. (a)

      (if the communication is initiated by or on behalf of a firm), of the name of the firm and the commercial purpose of the communication;1

    2. (b)

      [deleted]3

      3
    3. (c)

      that the firm will provide the retail client with basic advice without carrying out a full assessment of the retail client's needs and circumstances; and1

    4. (d)

      that such information will be confirmed in writing; and1

  2. (2)

    (if not provided at first contact) send the client the basic advice initial disclosure information (COBS 9 Annex 1) in a durable medium as soon as reasonably practicable following the conclusion of the first contact;13

  3. (3)

    3(unless the relevant product is a deposit-based stakeholder product) if the contact is by spoken interaction, provide the client with the disclosure required by the rules on additional oral disclosure for firms providing restricted advice (COBS 6.2A.9 R).3

Sales process1

COBS 9.6.9 R

When a firm gives basic advice, it must do so using:1

  1. (1)

    a single range of stakeholder products; and1

  2. (2)

    a sales process that includes putting pre-scripted questions to the client.1

COBS 9.6.10 R

When a firm gives basic advice it must not:1

  1. (1)

    describe or recommend a stakeholder product outside the firm'srange; or1

  2. (2)

    describe or recommend a smoothed linked long term stakeholder product; or1

  3. (3)

    describe fund choice, or recommend a particular fund, if a stakeholder product offers a choice of funds; or1

  4. (4)

    recommend the level of contributions required to be made to a stakeholder pension scheme to achieve a specific income in retirement; or1

  5. (5)

    recommend or agree that a client makes a contribution to an ISA which exceeds the HM Revenue & Customs ISA limits.1

COBS 9.6.11 R
  1. (1)

    If a firm starts the sales process for a stakeholder product that is not a deposit-based stakeholder product, it must not depart from that process unless it has advised the retail client that it will not provide basic advice on stakeholder products during the period of departure. A firm that does that must not provide basic advice during the departure period.1

  2. (2)

    Before a firm returns to the sales process for stakeholder products, it must tell the retail client that that process is about to recommence.1

Suitability of recommendations1

COBS 9.6.12 R

1A firm must only recommend a stakeholder product to a retail client if:

  1. (1)

    it has taken reasonable steps to assess the client's answers to the scripted questions and any other facts, circumstances or information disclosed by the client during the sales process;

  2. (2)

    (unless the relevant product is a deposit-based stakeholder product) having done so, it has reasonable grounds for believing that the stakeholder product is suitable for the client; and

  3. (3)

    the firm reasonably believes that the client understands the firm's advice and the basis on which it was provided.

COBS 9.6.13 G

1 COBS 9 Annex 2 gives guidance on the steps a firm could take to help it meet these suitability obligations.

COBS 9.6.14 R

1If a firm giving basic advice recommends to a retail client to acquire a stakeholder product, it must ensure that, before the conclusion of the contract, its representative:

  1. (1)

    (unless the relevant product is a deposit-based stakeholder product) explains to the client, if necessary in summary form, but always in a way that will allow the client to make an informed decision about the firm's recommendation:

    1. (a)

      the nature of the stakeholder product; and

    2. (b)

      the "aims", "commitment" and "risks" sections of the appropriate key features document;

  2. (2)

    provides the client with a summary sheet, which is in a durable medium and sets out, for each product it recommends:

    1. (a)

      the specific amount the client wishes to pay into the product; and

    2. (b)

      the reasons for the recommendation, including the client's attitude to risk and any information provided by the client on which the recommendation is based; and

  3. (3)

    informs the client that in determining any subsequent complaint, the Ombudsman may take into account the limited information on which the recommendation was based and the fact that it was not tailored to take account of those aspects of the client's financial needs and circumstances not covered by the firm's sales process.

COBS 9.6.15 R

1Notwithstanding COBS 9.6.14R (2) a firm may provide the summary sheet (COBS 9.6.14R (2)) as soon as reasonably practicable after the conclusion of the contract if the client asks it to do so, or the contract will be concluded using a means of distance communication that does not enable the provision of the summary sheet in a durable medium before the conclusion of the contract, but only if the firm:

  1. (1)

    reads the summary sheet to the client before it concludes the contract; and

  2. (2)

    sends the summary sheet to the client as soon as practicable after the conclusion of the contract.

Concluding the contract1

COBS 9.6.16 R

1If a firm concludes a contract for a stakeholder product with or for a retail client it must provide a copy of the completed questions and answers to the client in a durable medium as soon as reasonably practicable afterwards.

Basic advice on stakeholder products: other issues1

COBS 9.6.17 R
  1. (1)

    [deleted]3

    3
  2. (2)

    When a firm provides basic advice on a stakeholder product, it3 may use the facilities and stationery it uses for other business in respect of which it does hold itself out as acting or advising independently.

    33
COBS 9.6.18 R

1A firm must ensure that none of its representatives:

  1. (1)

    is likely to be influenced by the structure of his or her remuneration to give unsuitable basic advice on stakeholder products to a retail client; or

  2. (2)

    refers a retail client to another firm in circumstances which would amount to the provision of any fee, commission or non-monetary benefit.

Records1

COBS 9.6.19 R

1A firm must record that it has chosen to give basic advice to a retail client and make a record of the range used and the summary sheet (COBS 9.6.14R (2)) prepared for each retail client. That record must be retained for at least five years from the date of the relevant basic advice.

COBS 9.6.20 R
  1. (1)

    1A firm must make an up-to-date record of:

    1. (a)

      its scope of basic advice, and the scope of basic advice used by its appointed representatives (if any); and

    2. (b)

      its range (or ranges) of stakeholder products, and the range (or ranges) used by its appointed representatives (if any).

  2. (2)

    Those records must be retained for five years from the date on which they are replaced by a more up-to-date record.

COBS 9 Annex 1 Basic advice initial disclosure information1

R

1This Annex belongs to COBS 9.6.5R (1)

Information that comprises the following:

1.

the name and address (head office or principal place of business if more appropriate) of the firm;

2.

[deleted]2

2

3.

a statement that the service being offered is basic advice on a limited range of stakeholder products by asking questions about income, savings and other circumstances but without carrying out a full assessment of the retail client's needs and without offering advice on whether a non-stakeholder product may be more suitable;

4.

a statement, in accordance with GEN 43 that the firm is regulated by the FCA3 (or if an appointed representative, a statement of whom it is an appointed representative and that that firm is regulated by the FCA)3 to give basic advice, together with the registration number of the firm and the fact that the firm's status can be checked with the FCA3 on 0845 730 0104 or on the FCA3 website at http://www.fca.org.uk3;

3 3 3 3 3 3

5.

a statement disclosing any product provider loans (where such credit exceeds 10% of share and loan capital) and direct or indirect ownership (where that ownership exceeds 10% of share capital or voting power) either by, or of, a single product provider or operator; (See also notes 32-352 in COBS 6 Annex 1 and notes 45-502 of COBS 6 Annex 2)

2 2 2

6.

a2 description of the arrangements concerning complaints and the circumstances in which the retail client can refer the matter to the Financial Ombudsman Service; (See also notes 36-372 in COBS 6 Annex 1 and notes 51-542 of COBS 6 Annex 2)

2 2 2

7.

a description of the circumstances and the extent to which the2firm is covered by the compensation scheme and the retail client will be entitled to compensation from the compensation scheme;2 (See also notes 38-392 of COBS 6 Annex 1 and notes 55-582 of COBS 6 Annex 2)

2 2 2

28.

any relevant disclosure required by the rules on describing the breadth of advice (COBS 6.2A.5 R) and content and wording of disclosure (COBS 6.2A.6 R).

[Note: in respect of 1, 2, 4, 5, and 6, Articles 12 and 13 of the Insurance mediation directive and in respect of 7, Article 10 of the Investors compensation directive]

COBS 9 Annex 2 Sales processes for stakeholder products

This Annex gives guidance on the standards and requirements to which a firm may have regard in designing a sales process for stakeholder products and assumes that firms will provide basic advice to retail clients who have no practical knowledge of investing in stakeholder products or investments.

General Standards – all sales

1.

A sales process for stakeholder products may allow the representative administering it to depart from scripted questions where this is desirable to enable the retail client to better understand the points that need to be made provided this is compatible with the representative's competence and the degree of support offered by the firm's software and other systems. A software-based system is more likely to provide an adaptable means of providing prompts and support for representatives which may accordingly support a more flexible sales process.

2.

Questions, statements and warnings provided should be short, simple and in plain language. Questions should address one issue at a time.

3.

The sales process should enable the retail client to exit freely and without pressure at any stage. It should also allow the representative to terminate the process at any stage if it appears unlikely (for affordability, mis-match, risk or other reasons) that there is a suitable product for the retail client.

4.

Where necessary the sales process should incorporate procedures to allow uncertainties in the retail client's answers to be addressed before proceeding and should generally reflect caution about proceeding if clarification or further information cannot be obtained during the process (for example if a retail client cannot confirm whether he or she is eligible for membership of an occupational pension scheme).

Preliminary - all sales

5.

The retail client should be given the following preliminary information:

(a)

the retail client will only be given basic advice about stakeholder products;

(b)

stakeholder products are intended to provide a relatively simple and low-cost way of investing and saving;

(c)

the range of stakeholder products on which the representative will give advice to that retail client;1

(d)

the retail client will be asked a series of questions about his or her needs and circumstances and, at the end of the procedure, he or she may be recommended to acquire a stakeholder product;

(e)

the assessment of whether a stakeholder product is suitable will be made without a detailed assessment of the retail client's needs but will be based only on the information disclosed during the questioning process; and

(f)

the retail client's answers will be noted and, at the end of the process, if a recommendation to acquire a stakeholder product is made, the retail client will be provided with a copy of the completed questionnaire.

6.

Following 5, the retail client should be asked if he or she wishes to proceed and, if not, the sales process should cease.

Affordability - all sales

7.

If it appears that the retail client is unlikely to be able to afford a stakeholder product, the sale should be terminated and the retail client given an explanation together with a copy of the questions and answers completed to that point.

Financial Priorities and Debt - all sales

8.

A retail client should be assessed to ascertain other possible financial priorities -for example, does the retail client need (a) insurance protection; (b) access to liquid cash to meet an emergency; or (c) to reduce existing debts? If appropriate, the retail client should be given an unambiguous warning about the desirability of meeting those priorities before acquiring a stakeholder product.

9.

A stronger warning about the desirability of addressing debt as a priority should be given if it appears that the retail client is significantly indebted, especially if there is a strong indication that the debt commitments may render any new commitment unaffordable in the short-term. For this purpose a firm should consider using a threshold or indicator to decide whether a retail client should be excluded on the basis of affordability. Examples may include where the retail client has (a) annual unsecured debt repayments in excess of 20% of gross annual income or (b) four or more active forms of unsecured debt or (c) has consistently reached his overdraft limit. A firm should review its chosen indicator or threshold regularly to ensure that it reflects prevailing economic conditions and takes account of industry best practice.

10.

A firm should clearly explain what it needs to know about a retail client's debt and consider using a range of alternative words (eg 'loans', 'student loans', 'borrowing' and 'other forms of credit') to ensure all relevant information is obtained. A firm may use a simple reckoner to assess retail client debt, but should be conscious of the nature of, and not give the impression that it is providing more than, basic advice.

11.

If a firm gives a warning about the desirability of meeting other priorities before acquiring a stakeholder product, or about affordability, it should also invite the retail client to consider terminating the sales process.

Saving and investment objectives - all sales (except establishing a stakeholder CTF)

12.

A retail client's savings and investment objectives, including the period over which the retail client wishes to save or invest, should be ascertained including whether the retail client:

(a)

may need early access to some or all of the amount saved or invested; or1

(b)

wishes to save or invest for retirement; or

(c)

wants to accumulate a specific sum by a specific date.

13.

If that information indicates that the retail client's objective is:

(a)

to accumulate a specific sum by a specific date; or1

(b)

to save or invest only for the short term; or

(c)

early access may be required to the whole of the sum saved or invested;

the firm should not normally recommend a CIS stakeholder product, a linked life stakeholder product, a stakeholder pensionscheme or topping up of a stakeholder CTF.

Tolerance of risk - all sales

14.

If a retail client is not willing to accept any risk of the capital value of an investment being reduced then CIS stakeholder products, linked life stakeholder products and stakeholder CTFs should not usually be recommended. However, a firm may, if appropriate, explain the effect of inflation on long-term savings especially in relation to pensions and invite the retail client to consider his attitude to risk in the light of that explanation.

15.

If a retail client is willing to accept the risk of capital reduction in some circumstances but not others then, before any recommendation to acquire a CIS stakeholder product or linked life stakeholder product is made, the retail client should be reminded of the other circumstances in which he or she is unwilling to accept risk to capital.

Stakeholder pensions

16.

A stakeholder pension scheme should not be recommended, and the retail client should be advised to seek alternative or further advice, if it appears that the retail client:

(a)

has or will have access to an occupational pension scheme; or

(b)

is likely to view income in retirement from state benefits as sufficient; or

(c)

already has a pension to which he or she could make further contributions; or

(d)

wishes to retire within five years.

17.

It may also be appropriate to advise the retail client that other courses of action may be more beneficial than buying a stakeholder pension scheme (for example joining an occupational pension scheme).

18.

A firm designing a sales process for use in the workplace may take account of the benefits offered by the employer. If a firm recommends a stakeholder pensionscheme on the basis of benefits provided by an employer, then it should explain the basis of the recommendation to the retail client and suggest that the retail client seek advice if he or she has any concerns.

19.

A firm should design its processes with a view to addressing the risk that retail clients will fail to appreciate the significance of questions about their pension provision and should accordingly incorporate a range of questions and information designed to foster the retail client's understanding of the issues and to elicit appropriate information.

20.

Retail client should be told that a stakeholder pensionscheme is life-styled and what this means.

21.

2 A firm may provide a copy of the table setting out initial monthly pension amounts, found within the "Stakeholder pension decision tree" factsheet, available on 43www.moneyadviceservice.org.uk4 in accordance with COBS 13 Annex 2 1.8R, but in doing so should also provide and explain the caveats and assumptions behind the table. A firm should make it clear that the decision on how much to invest is the retail client's responsibility and that he should get further advice if has any concerns.2

3

ISAs

22.

A firm should ascertain whether the retail client has already opened a mini or maxi ISA and, if so, whether it would be appropriate for the retail client to open a non-ISA version of the same product.