Any warning notice or first supervisory notice will contain a statement that the person concerned will have a certain amount of time in which to make representations to the decision maker. In the case of a first supervisory notice the person concerned may make representations whether or not the matter to which the notice relates has been referred to the Tribunal.
If a second supervisory notice is given where the decision maker has decided to take action different from that which was proposed in the first supervisory notice, the second supervisory notice will provide a similar statement about the right to make representations.
In the case of a warning notice, section 387(2) of the Act requires that the warning notice must specify a reasonable period for the making of representations. This must be at least 28 days. The Act does not specify a minimum period that the FSA must give for making representations for supervisory notices.
In deciding on the period to make representations, the decision maker will have regard to the circumstances of each case, including the nature of the proposed action and its likely effect on the person concerned. The decision maker will have particular regard to the risk to the FSA's regulatory objectives of any delay in imposing proposed action. The period for representations will normally be 28 days from the date when the person receives the notice, subject to his right to seek an extension of time.
After receiving the warning notice or first supervisory notice, if the person concerned considers that its stated period for representations is too short, then he may, within 14 days of receiving the notice, request the FSA in writing for more time. In the case of a warning notice, this may be appropriate, for example, if a person has entered or wishes to enter into settlement discussions with FSA staff.
In accordance with section 387(3) of the Act and other relevant sections of the Act, the decision maker may extend the period of time for representations specified in the warning notice or supervisory notice.
If the person wishes to make oral representations, he should send a written notification of this to the FSA at the address stated in the warning notice or supervisory notice. The notification should be made at least five business days before the end of the period for representations specified in the notice. The notification should specify the matters on which the person wishes to make oral representations, include an estimate of how much time the person expects the representations to take, and provide the names of any representatives appointed to attend the meeting at which the representations will be made. If after notifying the FSA of his intention to make oral representations, the person chooses not to make those representations, the decision maker will nevertheless decide the matter.1
A person may appoint a representative of his choice (who may be legally qualified) to attend the meeting at which oral representations will be made. The representative may make or assist in making the representations.
The decision maker will specify a time as soon as is reasonably possible after receiving the notification for receiving the oral representations. The decision maker may specify the place where he will receive the representations and may specify that the representations will be received in private. The decision maker may limit the type, length and content of any representations. The decision maker may ask the person or his representative at the meeting to clarify any issue arising out of the representations and may require the person, and any representatives, to leave the meeting after they have made their representations.
If the FSA receives no response or representations within the period specified in a warning notice, the decision maker may regard as undisputed the allegations or matters in the warning notice. In such cases, a decision notice will be given accordingly. A person who has received a decision notice and has not previously made any response or representations to the FSA, may, nevertheless, refer the FSA's decision to the Tribunal as described in DEC 5.1.2
2If the FSA receives no response or representations within the period specified in a first supervisory notice, the FSA will not give a second supervisory notice. The outcome depends on when the action took or takes effect (as stated in the notice). If the action:
took effect immediately, or on a specified date which has already passed, it continues to have effect (subject to any decision on a referral to the Tribunal); or
was to take effect on a specified date which is still in the future, it takes effect on that date (subject to any decision on a referral to the Tribunal); or
was to take effect when the matter was no longer open for review, it takes effect when the period to make representations (or the period for referral to the Tribunal, if longer) expires, unless the matter has been referred to the Tribunal.
In exceptional cases, the decision maker may permit representations from a person who has received a decision notice (or a second supervisory notice) given in accordance with DEC 2.3 (or DEC 3.1.8 G to DEC 3.1.10 G) (or against whom action, detailed in a first supervisory notice, has taken effect as described in DEC 4.4.13A G), and shows on reasonable grounds that he did not receive the warning notice (or first supervisory notice), or that he had reasonable grounds for not responding within the specified period. In these circumstances, the decision maker may decide to give a notice of discontinuance (DEC 2.3.8 G to DEC 2.3.9 G) or a further decision notice (or a written notice or a supervisory notice).2