Related provisions for DISP App 1.5.7
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12In practice, it is likely to be appropriate for a complainant whose complaint has been upheld to convert to a repayment mortgage, whether or not there is financial loss to date. It will normally be possible for complainants to do so without incurring unreasonable cost. Conversion will of course mean that the complainant no longer has a policy.
12As stated, one aspect of the conversion process is the disposal of the endowment policy. The standard approach to assessing loss requires firms to calculate loss using the surrender value. However, once loss is established on this basis and firms move to deal with redress, they may wish to consider whether there is a role for the policy's 'market value' within the traded endowment policy (TEP) market.
12A firm may arrange the sale of the endowment policy on the traded endowment market, provided the full implications of such a course of action are explained to the complainant and his express consent is obtained for the firm to arrange the sale. This includes informing the investor that he will continue to be the life assured under the policy. The complainant should be informed that such an arrangement may reduce or eliminate the amount of redress actually borne by the firm,
12In the event that a complainant is willing to pursue this option, a firm should first have assessed the complainant's loss using the approach set out in this appendix, and the minimum amount the complainant should receive under such a sale arrangement is the sum representing the position the complainant should have been in under this appendix together with the reimbursement of remortgaging costs. In order to ensure the process does not delay the provision of redress, the firm
The Society, managing agents and members' agents must not cause or permit any member, in the conduct of his insurance business at Lloyd's, to enter into, arrange, claim on or make a payment under a contract of insurance that is intended to have, or has or would have, the effect of indemnifying any person against all or part of a financial penalty.
GEN 6.1.4A R,2GEN 6.1.5 R and GEN 6.1.6 R do not prevent a firm or member from entering into, arranging, claiming on or making any payment under a contract of insurance which indemnifies any person against all or part of the costs of defending FCA3 enforcement action or any costs they may be ordered to pay to the FCA3 .5555
1(1) 1In taking reasonable care to ensure the suitability of advice on a payment protection contract or a pure protection contract a firm should:(a) 1establish the customer's demands and needs by2 using information readily available2 to the firm and by obtaining further relevant information from the customer, including details of existing insurance cover; it need not consider alternatives to policies2 nor customer needs that are not relevant to the type of policy2 in which the
1In taking reasonable care to ensure the suitability of advice on a policy included in a packaged bank account, a firm must:(1) establish the customer's demands and needs by using information readily available to the firm and by obtaining further relevant information from the customer, including details of existing insurance cover; it need not consider alternatives to policies nor customer needs that are not relevant to the type of policy in which the customer is interested;(2)
If an insurance intermediary informs a customer that it gives:2(1) advice on the basis of a fair analysis, it must give that advice on the basis of an analysis of a sufficiently large number of contracts of insurance available on the market to enable it to make a recommendation; or2(2) a personal recommendation on the basis of a fair and personal analysis, it must give that personal recommendation on the basis of an analysis of a sufficiently large number of insurance contracts
(1) 1In line with Principle 6, a firm should take reasonable steps to ensure that a customer only buys a policy under which he is eligible to claim benefits.(2) If, at any time while arranging a policy, a firm finds that parts of the cover apply, but others do not, it should inform the customer so he can take an informed decision on whether to buy the policy.(3) This guidance does not apply to policiesarranged as part of a packaged bank account.2
2A firmarrangingpolicies as part of a packaged bank account must:(1) take reasonable steps to establish whether the customer is eligible to claim each of the benefits under each policy included in the packaged bank account which must include checking that the customer meets any qualifying requirements to claim each of the benefits under each policy; and(2) inform the customer whether or not he would be eligible to claim each of the benefits under each policy included in the packaged
(1) 32Throughout the term of a policy included in a packaged bank account, a firm must provide the customer with an eligibility statement, in writing,3 on an annual basis. This statement must set out any qualifying requirements to claim each of the benefits under the policy and recommend that the customer reviews his circumstances and whether he meets these requirements.(2) 3Where a customer has reached an age limit on claiming benefits under a travel insurance policy included
A firm should bear in mind the restriction on rejecting claims (ICOBS 8.1.1R (3)). Ways of ensuring a customer knows what he must disclose include:4(1) explaining to a commercial customer4 the duty to disclose all circumstances material to a policy, what needs to be disclosed, and the consequences of any failure to make such a disclosure; 4(2) ensuring that the commercial customer4 is asked clear questions about any matter material to the insurance undertaking;444(3) explaining
The amount payable may include: (1) any sums that a firm has reasonably incurred in concluding the contract, but should not include any element of profit;(2) an amount for cover provided (i.e. a proportion of the policy's exposure that relates to the time on risk);(3) a proportion of the commission paid to an insurance intermediary sufficient to cover its costs; and(4) a proportion of any fees charged by an insurance intermediary which, when aggregated with any commission to be
In most cases, the FCA would expect the proportion of a policy's exposure that relates to the time on risk to be a pro rata apportionment. However, where there is material unevenness in the incidence of risk, an insurer could use a more accurate method. The sum should be reasonable and should not exceed an amount commensurate to the risk incurred.
In good time before4 the conclusion of an initial contract of insurance and, if necessary, on its amendment or renewal :4(1) a firm must provide the customer with at least the following information:4(a) its identity, address and whether it is an insurance intermediary or an insurance undertaking;4(b) whether it provides a personal recommendation about the insurance products offered;4(c) the procedures allowing customers and other interested parties to register complaints about
(1) Where an insurance intermediary proposes or advises on a contract of insurance then in good time before4 the conclusion of an initial contract of insurance (other than a connected travel insurance contract) and, if necessary, on its amendment or renewal an insurance intermediary4 must provide the customer with at least information on whether the firm4:2(a) gives a personal recommendation4, on the basis of a fair and personal4 analysis; or(b) is under a contractual obligation
Where the firm has given information in ICOBS 4.1.6R(1)(b) and (c), then in good time before the4 conclusion of an initial contract of insurance with a consumer a firm must also4 state whether it is giving:4(1) a personal recommendation but not on the basis of a fair and personal analysis;4(2) other advice on the basis of a fair analysis of the market;4(3) other advice not on the basis of a fair analysis of the market; or4(4) just information.4
1An insurer must:(1) handle claims promptly and fairly;(2) provide reasonable guidance to help a policyholder make a claim and appropriate information on its progress; (3) not unreasonably reject a claim (including by terminating or avoiding a policy); and(4) settle claims promptly once settlement terms are agreed.
(1) 3Cases in which rejection of a consumer’s claim would be unreasonable (in the FCA’s view) include, but are not limited to rejection:(a) for misrepresentation, unless it is a qualifying misrepresentation (see ICOBS 8.1.3R);(b) where the claim is subject to the Insurance Act 2015, for breach of warranty or term, or for fraud, unless the insurer is able to rely on the relevant provisions of the Insurance Act 2015; and(c) where the policy is drafted or operated in a way that does
In this section,3 a “qualifying misrepresentation” is one made by a consumer before a consumer insurance contract was entered into or varied if:2(1) the consumer made the misrepresentation in breach of the duty set out in section 2(2) of the Consumer Insurance (Disclosure and Representations) Act 2012 to take reasonable care not to make a misrepresentation to the insurer; and(2) the insurer shows that without the misrepresentation, that insurer would not have entered into the
Broadly speaking, the exclusions focus on cases where the main business of a person is to sell goods or supply services but where certain activities may have to be carried on for the purposes of that business which would otherwise be regulated activities. The exclusions are not available where the customer to whom goods are sold or services are supplied is an individual. They are also not available where what is at issue is a transaction entered into, or service provided, in relation
These exclusions apply to intra-group dealings and activities and to dealings or activities involving participators in a joint enterprise which take place for the purposes of, or in connection with, the enterprise. The general principle here is that, as long as activities that would otherwise be regulated activities take place wholly within a group of companies, then there is no need for authorisation. The same principle applies to dealings or activities that take place wholly
The exclusions apply in relation to transactions to buy or sellshares in a body corporate where, in broad terms:(1) the transaction involves the acquisition or disposal of a least 50 per cent of the voting shares in the body corporate and is, or is to be, between certain specified kinds of person; or(2) the object of the transaction may otherwise reasonably be regarded as being the acquisition of day-to-day control of the affairs of the body corporate.These exclusions also apply
The exclusions in this group apply to certain regulated activities involving certain contracts of insurance. The exclusions and the regulated activities to which they apply are as follows.(1) The first exclusion of this kind relates to certain activities carried on by a provider of non-motor goods or services,19 or services related to travel in connection with general insurance contracts that satisfy a number of conditions.19777(a) The contracts must:19(i) have a premium of:19(A)
(1) 12Subject to (2), (3) and (4),15 the exclusions apply, in relation to any activity carried on by a local authority.15(2) The exclusion relating to the regulated activities of:(a) dealing in investments as agents;(b) arranging (bringing about) deals in investments;(c) making arrangements with a view to transactions in investments;(d) assisting in the administration and performance of a contract of insurance; and(e) advising on investments;applies to any activity carried on
A firm must not effect new contracts of insurance in an existing with-profits fund unless:22(1) the firm'sgoverning body is satisfied, so far as it reasonably can be, and can demonstrate, having regard to the analysis in (2), that the terms on which each type of contract is to be effected are likely to have no adverse effect on the interests of the with-profits policyholders whose policies are written into that fund; and2(2) the firm has:(a) carried out or obtained appropriate
(1) 2The aim of the discussions in COBS 20.2.41A R is to:(a) allow the FCA to comment on the adequacy of the firm's planning; and(b) seek agreement with the firm on any other appropriate actions to ensure with-profits policyholders are treated fairly.(2) If the firm is no longer effecting a material volume of new with-profits policies (other than by reinsurance) into a with-profits fund; or if it is ceding by way of reinsurance most or all of the new with-profits policies which
A firm must:(1) inform the appropriate regulator and its with-profits policyholders within 28 days; and(2) submit a run-off plan to the appropriate regulator 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.
A firm will be taken to have ceased to effect new contracts of insurance in a with-profits fund:(1) when any decision by the governing body to cease to effect new contracts of insurance takes effect; or(2) where no such decision is made, when the firm is no longer:(a) actively seeking to effect new contracts of insurance in that fund; or(b) effecting new contracts of insurance in that fund, except by increment; or2(3) if the firm:2(a) (i) is no longer effecting a material volume
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) why it has done so;(2) what changes it has made, or proposes to make, to the fund's investment strategy (if any);(3) how closure may affect with-profits policyholders (including any reasonably foreseeable effect on future bonus prospects);(4) the options available to with-profits policyholders and an indication of the potential
(1) 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.(1A) Where a with-profits fund contains assets which may not be readily realisable, the firm should take reasonable steps to ensure that the economic value of those assets is made available
Contract of insurance is defined to include certain things that might not be considered a contract of insurance at common law. Examples of such additions include capital redemption contracts or contracts to pay annuities on human life. Detailed guidance on identifying a contract of insurance is in PERG 6 (Guidance on the Identification of Contracts of Insurance).
There are two main sorts of contracts of insurance. These are general insurance contracts and long-term insurance contracts. The Regulated Activities Order provides that, in certain specified circumstances, a contract is to be treated as a long-term insurance contract notwithstanding that it contains supplementary provisions that might also be regarded as relating to a general insurance contract (see article 3(3)).
The Regulated Activities Order uses two further terms in relation to contracts of insurance to identify those contracts under which rights are treated as contractually based investments.(1) The first term is 'qualifying contracts of insurance' (referred to as life policies in the Handbook). This identifies those long-term insurance contracts under which rights are treated as contractually based investments. This term does not cover long-term insurance contracts which are contracts
Certain arrangements in relation to funeral plans are specifically excluded from being contracts of insurance if they would otherwise be so. The exclusion applies to arrangements that fall within the definition of a funeral plan contract (see PERG 2.6.26 G) as well as arrangements that are excluded from the regulated activity of entering as provider into funeral plan contracts (see PERG 2.8.14 G).
Certain instruments are excluded from both of the6 categories of specified investments referred to in PERG 2.6.11 G6. These include trade bills, specified banking documents (such as cheques and banknotes though not bills of exchange accepted by a banker) and contracts of insurance. There is a further exclusion from this category of specified investment dealing with public debt for National Savings deposits and products. However, for the purposes of article 78 of the Financial
There are several things that are not covered by this category (other than rights to, or interests in, rights under a mortgage contract). Anything that is covered by any other specified investment category is excluded, as are interests under the trusts of an occupational pension scheme. Finally, where a contract is excluded from the scope of the regulated activity of entering as provider into a funeral plan contract (see PERG 2.8.14 G), then rights to, or interests in, the contracts
(1) Principle 8 requires a firm to manage conflicts of interest fairly. SYSC 10 also requires an insurance intermediary to take all reasonable steps to identify conflicts of interest, and maintain and operate effective organisational and administrative arrangements to prevent conflicts of interest from constituting or giving rise to a material risk of damage to its clients. 1(2) [deleted]11(3) If a firm acts for a customer in arranging a policy, it is likely to be the customer's
If a firm (whether within or outside the scope of the Solvency II Directive)2 decides to cease to effect new contracts of insurance, it must, within 28 days of that decision, submit a run-off plan to the FCA3 including: (1) a scheme of operations; and (2) an explanation of how, or to what extent, all liabilities to policyholders (including, where relevant, liabilities which arise from the regulatory duty to treat customers fairly in setting discretionary benefits) will be met
Under Principle 11, the FCA3 normally expects to be notified by a firm when it decides to cease effecting new contracts of insurance in respect of one or more classes of contract of insurance (see SUP 15.3.8 G). At the same time, the FCA3 would normally expect the firm to discuss with it the need for the firm to apply to vary its permission (see SUP 6.2.6 G and SUP 6.2.7 G) and, if appropriate, to submit a scheme of operations in accordance with SUP App 2.8.1 R.
Therefore, for example, an approved person performing controlled functions in a Solvency II firm or a small non-directive insurer2 should note that that term includes rights under a contract of insurance, meaning they should also take into account those parts of COCON which provide guidance on individual conduct rules that refer to ‘investments’.
(1) An insurance intermediary must, on a commercial customer's request, promptly disclose the commission that it and any associate receives in connection with a policy.(2) Disclosure must be in cash terms (estimated, if necessary) and in writing or another durable medium. To the extent this is not possible, the firm must give the basis for calculation.
(1) The commission disclosure rule is additional to the general law on the fiduciary obligations of an agent in that it applies whether or not the insurance intermediary is an agent of the commercial customer.(2) In relation to contracts of insurance, the essence of these fiduciary obligations is generally a duty to account to the agent’s principal. But where a customer employs an insurance intermediary by way of business and does not remunerate him, and where it is usual for
An appointed representative can carry on only those regulated activities which are specified in the Appointed Representatives Regulations. The regulated activities set out in the table in PERG 5.13.4 G are included in those regulations. As set out in the table, the insurance distribution activities2 that can be carried on by an appointed representative differ depending on the type of contracts of insurance in relation to which the activities are carried on.
Type of contract of insurance
Regulated activities an appointed representative can carry on
Where a person (A), who2 is already an appointed representative, proposes to start to2 carry on any insurance distribution activities, A2 will need to consider the following matters.(1) A2 must become authorised if the insurance distribution activities that A proposes to carry on2 include activities that do not fall within the table in PERG 5.13.4 G (for example, dealing as agent in pure protection contracts)2. The Act does not permit any person to be exempt for some activities
In addition, certain other activities carried on in relation to rights under contracts of insurance are regulated activities. These are where the activity is carried on in relation to:(1) life policies, where the regulated activities concerned are:(a) dealing in investments as principal (see PERG 2.7.5 G);(b) managing investments (see PERG 2.7.8 G);(c) safeguarding and administering investments (see PERG 2.7.9 G); and(d) agreeing to carry on any of those activities (see PERG 2.7.21
8In the FCA's view, a mere passive display of literature advertising investments would not amount to the article 25(2) activity. Further guidance on this point can be found in PERG 5.6.4 G. Although this guidance is in relation to contracts of insurance, the principle is not limited to them.
Further guidance on the arranging activities as they relate to home finance transactions and contracts of insurance is in PERG 4.5 (Arranging regulated mortgage contracts), PERG 14.3 and PERG 14.4 (Guidance on home reversion and home purchase activities)3 and PERG 5.6 (The regulated activities: arranging deals in, and making arrangements with a view to transactions in, contracts of insurance) respectively.3
15A credit agreement is also an exempt agreement in the following cases:(1) if (subject to PERG 2.7.19H G):(a) the agreement is a borrower-lender-supplier agreement for fixed-sum credit;(b) the number of payments to be made by the borrower is not more than 1221;(c) those payments are required to be made within a period of 12 months or less (beginning on the date of the agreement); and(d) the credit is:(i) secured on land; or(ii) provided without interest or other charges;(2) if
Professional firms should be aware of the disapplication of the exclusions for trustees (article 66) and activities carried on in the course of a profession or non-investment business (article 67) outlined in PERG 5.11.7 G (Exclusions disapplied in connection with insurance distribution3) where their activities would amount to insurance distribution3. Where they do not, they will still be able to rely upon article 67. Otherwise, the Non-Exempt Activities Order3 imposes limitations
As indicated in PERG 5.6.8 G, the article 72C exclusion (Provision of information on an incidental basis) is potentially available to unauthorisedprofessional firms including exempt professional firms. This may be relevant to professional firms arranging contracts of insurance for clients on an individual basis.
(1) In a sale that does not involve a personal recommendation, a firm must take reasonable steps to ensure a customer (C) understands that C is2 responsible for deciding whether a policy meets C’s2 demands and needs.(2) [deleted]2(3) If a firm anticipates providing, or provides, information on any main characteristic of a policy orally during a non-advised sale, taking reasonable steps includes explaining the customer's responsibility orally.(4) A policy's main characteristics
(1) Prior to the conclusion of an initial contract and, if necessary, on its amendment or renewal, an insurer must disclose to the customer at least:(a) the statutory status disclosure statement (see GEN 4);(b) whose policies it offers; and(c) whether it is providing a personal recommendation or information.(2) [deleted]2
This chapter applies principally to any person who needs to know whether they carry on insurance distribution activities and are1 thereby subject to FCA regulation. As such it will be of relevance among others to:(1) insurance brokers;(2) insurance advisers;(3) insurance undertakings; and(4) other persons involved in the sale and administration of contracts of insurance, even where these activities are secondary to their main business.
A person may wish to carry on activities related to other forms of investment in connection with contracts of insurance, such as advising on and arrangingregulated mortgage contracts. Such a person should also consult the guidance in PERG 2 (Authorisation and Regulated Activities), PERG 4 (Regulated activities connected with mortgages) and PERG 8 (Financial Promotion and Related Activities). A person may also wish to carry on regulated claims management activities (where their
The regulated activity of assisting in the administration and performance of a contract of insurance (article 39A) relates, in broad terms, to activities carried on by intermediaries after the conclusion of a contract of insurance and for or on behalf of policyholders, in particular in the event of a claim. Loss assessors acting on behalf of policyholders in the event of a claim are, therefore, likely in many cases to be carrying on this regulated activity. By contrast, managing1
Put another way, where an intermediary's assistance in filling in a claims form is material to whether performance takes place of the contractual obligation to notify claims, it is more likely to amount to assisting in the administration and performance of a contract of insurance. Conversely, in the FCA's view, a person who merely gives pointers about how to fill in the claims form or merely supplies information in support of a claim will not be assisting in the performance of