Related provisions for DISP App 3.8.1

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DISP App 1.2.1GRP
If there has been a failure to give compliant and proper advice, or some other breach of the duty of care, the basic objective of redress is to put the complainant, so far as is possible, in the position he would have been in if the inappropriate advice had not been given, or the other breach had not occurred. In many cases, although it must be a matter for inquiry and assessment in each individual case, this position is likely to have resulted in the complainant taking a repayment
12Firms may adopt streamlined processes to assist them in individual assessments of "sufficient means", but will have to satisfy themselves that the complainant's position is nevertheless protected. Firms will need to ensure that the complainant is given an opportunity to make an informed choice whether to accept the streamlined process, that the process itself is transparent, and that the firm is satisfied that the outcome would be fair to complainants.
12If a firm intends to make a deduction for all or any part of the lower endowment outgoings, the firm should explain clearly to the complainant in writing both how the 'sufficient means' test has been satisfied, including details of the information taken into account in reaching the decision, and how the deduction has been arrived at. The letter should further inform the complainant that if he is unhappy with the proposal to make a deduction, either in principle or as to the
12If a complainant puts forward a case that it would be unreasonable for a deduction to be made, the firm should reach a fair and objective determination on the facts of all relevant matters including those set out at DISP App 1.2.8 G and DISP App 1.2.9 G.
12It would not be unreasonable if a firm providing redress in these circumstances were to frame its offer of redress on the assumption that the complainant will agree to surrender the policy. However, firms should bear in mind that there may be circumstances where it is appropriate for the complainant to retain the policy, for example, where it is being retained as a savings vehicle.
12The standard approach to redress can be illustrated by the following examples, which show how redress would be calculated in certain hypothetical but typical scenarios. (Because the examples are illustrative, round numbers have been used for 'established facts' in each example. The payments should be taken as being made monthly: firms should not approximate by assuming that payments are made annually. If the complainant has benefited from MIRAS, the calculations should allow
12Table of examples of typical redress calculationsExample 1Capital shortfall and higher endowment outgoingsExample 2Capital shortfall partially offset by lower endowment mortgage outgoingsExample 3Capital shortfall more than offset by lower endowment mortgage outgoingsExample 4Capital surplus more than offset by higher endowment mortgage outgoingsExample 5Capital surplus partially offset by higher endowment mortgage outgoingsExample 6Capital surplus and lower endowment mortgage
12Example 1Example 1 Capital shortfall and higher endowment mortgage outgoingsBackgroundCapital sum of £50,00025 year endowment policyDuration to date: 5 yearsEndowment premium per month: £75Established factsEndowment surrender value:£3,200Capital repaid under equivalent repayment mortgage:£4,200Surrender value less capital repaid:(£1,000)Cost of converting from endowment mortgage to repayment mortgage: (£200)Total outgoings to date Equivalent repayment mortgage (capital + interest
12Example 2Example 2Capital shortfall partially offset by lower endowment mortgage outgoingsBackgroundCapital sum of £50,00025 year endowment policyDuration to date: 5 yearsEndowment premium per month: £60Established factsEndowment surrender value: £2,500Capital repaid under equivalent repayment mortgage£4,200Surrender value less capital repaid under equivalent repayment mortgage:(£1,700)Cost of converting from endowment mortgage to repayment mortgage (£300)Total outgoings to
12Example 3Example 3Capital shortfall more than offset by lower endowment mortgage outgoingsBackgroundCapital sum of £50,00025 year endowment policyDuration to date: 8 yearsEndowment premium per month: £65Established factsEndowment surrender value: £7,300Capital repaid under equivalent repayment mortgage:£7,600Surrender value less capital repaid:(£300)Cost of converting from endowment mortgage to repayment mortgage: (£200)Total outgoings to date: Repayment mortgage (capital +
12Example 4Example 4Capital surplus more than offset by higher endowment mortgage outgoingsBackgroundCapital sum of £50,00025 year endowment policyDuration to date: 8 yearsEndowment premium per month: £75Established factsEndowment surrender value: £7,800Capital repaid under equivalent repayment mortgage:£7,600Surrender value less capital repaid:£200Cost of converting from endowment mortgage to repayment mortgage: (£250)Total outgoings to date: Repayment mortgage (capital + interest
12Example 5Example 5Capital surplus partially offset by higher endowment mortgage outgoings BackgroundCapital sum of £50,00025 year endowment policyDuration to date: 10 yearsEndowment premium per month: £75Established factsEndowment surrender value: £11,800Capital repaid under equivalent repayment mortgage£9,700Surrender value less capital repaid:£2,100Cost of converting from endowment mortgage to repayment mortgage: (£300)Total outgoings to date: Repayment mortgage (capital +
12Example 6Example 6Capital surplus and lower endowment mortgage outgoings BackgroundCapital sum of £50,00025 year endowment policyDuration to date: 10 yearsEndowment premium per month: £65Established factsEndowment surrender value: £10,100Capital repaid under equivalent repayment mortgage£9,700Surrender value less capital repaid:£400Cost of converting from endowment mortgage to repayment mortgage: (£200)Total outgoings to date: Repayment mortgage (capital + interest + DTA life
12Example 7Example 7Low start endowment mortgageBackgroundCapital sum of £50,00025 year endowment policyDuration to date: 10 yearsEndowment premium per month: starting at £35 in first year, increasing by 20% simple on each policy anniversary, reaching £70 after five years and then remaining at that level. Established facts:Endowment surrender value:£8,200Capital repaid under equivalent repayment mortgage:£9,700Surrender value less capital repaid:(£1,500)Cost of converting from
DISP App 1.6.1GRP
If, exceptionally under the guidance at DISP App 1.5.13 G to DISP App 1.5.21 G, cash or shares derived from a corporate event are to be taken into account when assessing loss and redress, cash should be valued at the amount actually received and shares should be valued at their issue price. In both cases there should be no addition for interest.3434
DISP App 1.6.2GRP
When valuing windfall augmentation benefits for the purposes of calculating loss and redress the objective is to exclude all changes arising from the windfall event. The amount of redress payable will then be equal to the amount that would have been payable if the windfall event had never occurred.3434
DISP App 1.6.9GRP
34In most cases where there is a loss, the endowment policy will be surrendered and put towards the cost of setting up a suitable repayment mortgage. Where this is the case, that part of the surrender value relating to the windfall augmentation should be paid as a cash lump sum to the investor or to the investor's order as part of the redress package. Only that part of the surrender value which does not relate to the windfall augmentation should be put towards the cost of setting
34There may be some circumstances in which the policy will not be surrendered (see DISP App 1.2.15 G). In these cases, there is no requirement to pay the value of the windfall augmentation as a cash lump sum since the value of the augmentation will become payable when the policy matures. However, any fund value used in the calculation of redress payable should exclude the value of the windfall augmentation.
34Firms are entitled to mitigate losses by making use of the Traded Endowment Policy (TEP) market (see DISP App 1.3.8 G to DISP App 1.3.10 G). This allows firms to sell policies on the TEP market to meet the costs of redress, rather than using the surrender value. Where this method is adopted, firms should pay to the investor, as part of the redress package, a cash lump sum representing that proportion of the policy realised which would have related to the windfall augmentati
34As this windfall amount should be excluded from the fund value used in the calculation of loss and redress it would also be appropriate for this extra payment to be ignored when assessing whether, "the net amount realised by the sale of the policy on the traded endowment market exceeds the total redress due to the complainant..." (DISP App 1.3.10 G).
34DISP App 1.5.10 G provides firms with the opinion of underpinning benefits. Firms should satisfy the FCA that their proposals provide complainants with a level of redress that is at least commensurate with the standard approaches and, to ensure consistency, windfall augmentations should be excluded when considering whether an underpin will apply. The FCA will take this into account when considering proposals put forward by firms.
34Product providers with windfall benefits in the form of policy augmentations should tell:(1) their own relevant customers (mortgage endowment complainants); and(2) 1other firms1 with such customers (and any other interested parties);that they have excluded windfall augmentation benefits from values used or to be used for loss and redress.1Firms1 should provide this information to the Financial Services Compensation Scheme when providing them with a value to be used for loss
DISP App 3.7.1ERP
Where the firm concludes in accordance with DISP App 3.6 that the complainant would still have bought the payment protection contract he bought, no redress will be due to the complainant in respect of the identified breach or failing, subject to DISP App 3.7.6 E.
DISP App 3.7.2ERP
Where the firm concludes that the complainant would not have bought the payment protection contract he bought, and the firm is not using the alternative approach to redress (set out in DISP App 3.7.7 E to 3.7.15 E) or other appropriate redress (see DISP App 3.8), the firm should, as far as practicable, put the complainant in the position he would have been if he had not bought any payment protection contract.
DISP App 3.7.5ERP
Where a claim was previously paid on the policy, the firm may deduct this from redress paid in accordance with DISP App 3.7.3 E. If the claim is higher than the amount to be paid under DISP App 3.7.3 E then the firm may also deduct the excess from the amount to be paid under DISP App 3.7.4 E.
DISP App 3.7.6ERP
Where the firm concludes that the complainant may have reasonably expected that a rejected claim would have been paid (see DISP App 3.5) then:(1) if the value of the claim exceeds the amount of the redress otherwise payable to the complainant for a breach or failing identified in accordance with this appendix, the firm should pay to the complainant only the value of the claim (and simple interest on it as appropriate); and(2) if the value of the claim is less than the amount of
DISP App 3.7.8ERP
If a firm chooses to make this presumption, then it should do so fairly and for all relevant complainants in a relevant category of sale. It should not, for example, only use the approach for those complainants it views as being a lower underwriting risk or those complainants who have cancelled their policies.
DISP App 3.7.9ERP
Where the firm presumes that the complainant would have purchased a regular premium payment protection contract, the firm should offer redress that puts the complainant in the position he would have been if he had bought an alternative regular premium payment protection contract.
The firm should pay to the complainant a sum equal to the amount in DISP App 3.7.3 E less the amount the complainant would have paid for the alternative regular premium payment protection contract.
The firm should consider whether it is appropriate to deduct the value of any paid claims from the redress.
The firm should, for the purposes of redressing the complaint, use the value of £9 per £100 of benefits payable as the monthly price of the alternative regular premium payment protection contract. For example, if the monthly repayment amount in relation to the loan only is to be £200, the price of the alternative regular premium payment protection contract will be £18.
2Where the firm is aware that another firm has previously paid redress at step 2, the firm may deduct this from the redress due under step 1.
DISP App 1.4.3GRP
If on enquiry it is found that no proper assessment of the complainant's post-retirement means had been undertaken at the time of sale, but if the likelihood had been that the complainant would have borrowed the same amount over a shorter term (up to retirement) using an endowment policy as a repayment vehicle, then an appropriate form of redress would be for the policy to be reconstructed with a shorter term.
DISP App 1.4.4GRP
12Redress should in most cases be provided by meeting the cost of rearranging the policy, by way of a lump sum payment into the policy in respect of the higher rate of premium due from its inception. It may be appropriate in individual cases to take account of the lower premiums that the complainant will have paid to date. The guidance in DISP App 1.2, as to the circumstances in which this will be appropriate, will be relevant here.
DISP App 1.4.9GRP
12If it is not possible for a firm to reconstruct a policy, then it should offer the investor equivalent redress, for example, by paying a cash lump sum equivalent to the amount that would have been credited to a reconstructed policy.
12If a loan extending into retirement was on any basis not affordable, whether or not it is reconstructed to the retirement date, firms will need to consider whether, if proper advice had been given, the loan would have been taken out at all and, if not, consider what arrangements might now need to be made in order to reduce the amount of the complainant's borrowings.
12The following examples illustrate the approach to redress as described in this section.
12Example 8Example 8Term extends beyond retirement age and policy reconstructionBackground45 year old male non-smoker, having taken out a £50,000 loan in 1998 for a term of 25 years. Unsuitable sale identified on the grounds of affordability and complaint raised on 12th policy anniversary.It has always been the intention of the complainant to retire at State retirement age 65.Term from date of sale to retirement is 20 years and the maturity date of the mortgage is 5 years after
12Example 9Example 9Term extends beyond retirement age: example of failure to explain investment risksBackground45 year old male non-smoker, having taken out a £50,000 loan in 1998 for a term of 25 years. Unsuitable sale identified on the grounds of affordability and complaint raised on 12th anniversary.It has always been the intention of the complainant to retire at state retirement age 65.Term from date of sale to retirement is 20 years and the maturity date of the mortgage
DISP App 3.8.2ERP
When applying a remedy other than those set out in DISP App 3.7, the firm should satisfy itself that the remedy is appropriate to the matter complained of and is appropriate and fair in the individual circumstances.
DISP App 3.8.3ERP
1The remedies in DISP App 3.7A are not exhaustive.
DISP App 3.9.1GRP
Where the complainant's loan or credit card is in arrears the firm may, if it has the contractual right to do so, make a payment to reduce the associated loan or credit card balance, if the complainant accepts the firm's offer of redress. The firm should act fairly and reasonably in deciding whether to make such a payment.
DISP App 3.9.2GRP
In assessing redress, the firm should consider whether there are any other further losses that flow from its breach or failing or from its failure to disclose commission (as applicable), 1 that were reasonably foreseeable as a consequence of the firm's breach or failing or of its failure to disclose commission,1 for example, where the payment protection contract's cost or rejected claims contributed to affordability issues for the associated loan or credit which led to arrears
DISP App 3.9.3GRP
Where, for single premium policies, there were previous breaches or failings or previous failures to disclose commission1 (see DISP App 3.2.7 G) the redress to the complainant should address the cumulative financial impact.
DISP App 3.9.4GRP
The firm should make any offer of redress to the complainant in a fair and balanced way. In particular, the firm should explain clearly to the complainant the basis for the redress offered including how any compensation is calculated and, where relevant, the rescheduling of the loan, and the consequences of accepting the offer of redress.
DISP App 1.3.1GRP
As already noted, the basic objective of redress is to put the complainant, so far as is possible, in the position he would have been in if the inappropriate advice or other breach had not occurred: for their part, the complainants should take such reasonable steps as they can to limit loss once they are informed of the position they are in because of the failure of advice at the time of sale.1212
DISP App 1.3.8GRP
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.
DISP App 1.3.9GRP
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
12Example of assessment set out at 1.3.10The following example illustrates the position:Surrender value£10,000TEP value£16,000Loss calculated by standard approach£5,000Remortgaging costs£300Total£15,300Complainant receives £16,000 all ultimately funded from the TEP sale.Surrender value£10,000TEP value£13,000Redress calculated by standard approach£5,000Remortgaging costs£300Total£15,300Complainant receives £15,300, £13,000 ultimately funded from the TEP sale and £2,300 ultimately
DISP App 1.5.1GRP
This section addresses issues which may be relevant to the standard redress for unsuitability cases, as well as some post-retirement cases upheld on the grounds of affordability.2323
DISP App 1.5.4GRP
If a need for life assurance at inception has been established so that a deduction representing its cost has been made from the redress payable under DISP App 1.2.4 G, the firm should advise the complainant that the firm would be responsible for paying any premium for an appropriate replacement policy which exceeds that used for calculating the deduction or alternatively will, where possible, provide the cover itself at that cost. If it is not possible for the firm to provide
23Firms proposing to offer arrangements involving some form of minimum underpinning or 'guarantee' should discuss their proposals with the FCA and1 HM Revenue and Customs1 at the earliest possible opportunity (see DISP App 1.5.8 G). The FCA will need to be satisfied that these proposals provide complainants with redress which is at least commensurate with the standard approaches contained in this appendix.
23One of the reasons for introducing the guidance in this appendix is to seek a reduction in the number of complaints which are referred to the Financial Ombudsman Service. If a firm writes to the complainant proposing terms for settlement which are in accordance with this appendix, the letter may include a statement that the calculation of loss and redress accords with the FCAguidance, but should not imply that this extends to the assessment of whether or not the complaint should
23Windfall benefits should be determined in accordance with the principle in Needler Financial Services and Taber ('Needler'). The basic legal principle in Needler is that a windfall benefit is not to be taken into account in determining the amount of an investor's recoverable loss. The following paragraphs explain our views as to how firms may act in accordance with that principle.
23Firms should not normally bring windfall benefits which are relevant benefits (as defined in DISP App 1.5.14 G) to account when assessing financial loss and redress. Where a windfall benefit is in the form of a policy augmentation the benefit should be deducted from the overall value of the policy when making this assessment.
DISP App 3.1.1GRP
(1) 1This appendix sets out how:3(a) 3a firm should handle complaints relating to the sale of a payment protection contract by the firm which express dissatisfaction about the sale, or matters related to the sale, including where there is a rejection of claims on the grounds of ineligibility or exclusion (but not matters unrelated to the sale, such as delays in claims handling); and3(b) 3a firm that is a CCA lender and which has received such a complaint should consider whether
DISP App 3.1.2GRP
At step 1, the3 aspects of complaint handling dealt with in this appendix are how the firm should:(1) assess a complaint in order to establish whether the firm's conduct of the sale failed to comply with the rules, or was otherwise in breach of the duty of care or any other requirement of the general law (taking into account relevant materials published by the FCA, other relevant regulators, the Financial Ombudsman Service and former schemes). In this appendix this is referred
3At step 2, the aspects of complaint handling dealt with in this appendix are how a CCA lender should:(1) assess a complaint to establish whether failure to disclose commission gave rise to an unfair relationship under section 140A of the CCA; and(2) determine the appropriate redress (if any) to offer to a complainant.
DISP App 3.1.5GRP
In this appendix:(1) (a) at step 1,3 “historic interest” means the interest the complainant paid to the firm because a payment protection contract was added to a loan or credit product;3(b) at step 2, “historic interest” means in relation to any sum, the interest the complainant paid as a result of that sum being included in the loan or credit product;32(2) "simple interest" means a non-compound rate of 8% per annum;3(3) "claim" means a claim by a complainant seeking to rely upon
Where the firm concludes in accordance with DISP App 3.3A that the non-disclosure has given rise to an unfair relationship under section 140A of the CCA, the firm should remedy the unfairness.
In relation to a regular premium payment protection contract, the firm should pay to the complainant in respect of each redress period a sum equal to:(1) an amount appropriately representing the commission paid in respect of that period; plus (2) an amount appropriately representing profit share in respect of that period; minus (3) 50% of the amount appropriately representing the total amount paid in respect of that period2 (or other percentage as in DISP App 3.7A.4E). A firm
If the complainant has received any rebate, the firm may calculate the amount of the rebate that represents commission and actual profit share sums paid up to the point of the rebate that were more than 50% (or such other percentage determined under DISP App 3.7A.4E) of the total amount paid in relation to the payment protection contract and deduct this from the amount of redress otherwise payable to the complainant.
Where a claim was previously paid on the policy, the firm should not deduct this from the redress paid.
DISP 1.10B.7DRP
DISP 1 Annex 1AD requires, for the relevant reporting period and in respect of particular categories of products:(1) in Table 1, information about the total number of complaints received by the respondent and the cause of the complaint;(2) in Table 2, information about the number of complaints that were:(a) closed or upheld within different periods of time; and(b) the total amount of redress paid by the respondent in relation to complaints upheld and not upheld in the relevant
DISP 1.10B.8GRP
When completing the return, the respondent should take into account the following matters.(1) If a complaint could fall into more than one category, the complaint should be recorded in the category which the respondent considers to form the main part of the complaint.(2) Under DISP 1.10B.7D(2)(a), a respondent should report information relating to all complaints which are closed and upheld within the relevant reporting period, including those resolved under DISP 1.5 (Complaints
DISP App 3.4.1GRP
DISP 1.3.3 R requires the firm to put in place appropriate management controls and take reasonable steps to ensure that in handling complaints it identifies and remedies any recurring or systemic problems. If a firm receives complaints about its sales of payment protection contracts it should analyse the root causes of those complaints including, but not limited to, the consideration of:(1) the concerns raised by complainants (both at the time of the sale and subsequently);(2)
DISP App 3.4.3GRP
Where a firm identifies (from its complaints or otherwise) recurring or systemic problems in its sales practices for a particular type of payment protection contract, either for its sales in general or for those from a particular location or sales channel, it should (in accordance with Principle 6 (Customers' interests) and to the extent that it applies), consider whether it ought to act with regard to the position of customers who may have suffered detriment from, or been potentially
ICOBS 4.1.2RRP
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
ICOBS 4.1.5RRP
[deleted]422
DISP App 3.2.4GRP
Where a complaint raises (expressly or otherwise) issues that may relate to the original sale or a subsequently rejected claim then, irrespective of the main focus of the complaint, the firm should pro-actively consider whether the issues relate to both the sale and the claim, and assess the complaint and determine redress accordingly.
EG 11.1.3RP
1The FCA has power to apply to the court for a restitution order under section 382 of the Act and (in the case of market abuse) under section 383 of the Act. It also has an administrative power to require restitution under section 384 of the Act. When deciding whether to exercise these powers, the FCA will consider whether this would be the best use of the FCA's limited resources taking into account, for example, the likely amount of any recovery and the costs of achieving and
COBS 20.2.24RRP
Subject to COBS 20.2.25 R, COBS 20.2.25A R and COBS 20.2.25B R, a1firm must not pay compensation or redress from a with-profits fund.11
COBS 20.2.25RRP
A proprietary1firm may pay compensation or redress due to a policyholder, or former policyholder, from assets attributable to shareholders, whether or not they are held within a long-term insurance fund or with-profits fund, as relevant.511
CONC 4.4.2RRP
(1) A firm must disclose to the customer the fee, if any, payable by a customer to the firm for its services. [Note: section 160A(4) of CCA] (2) Any fee to be paid by the customer to the firm must be agreed between the customer and the firm, and that agreement must be recorded in writing or other durable medium before a regulated credit agreement is entered into.[Note: section 160A(4) of CCA] (3) A firm must disclose to the lender the fee, if any, for its activity payable by the
DISP 1.10.3GRP
For the purposes of DISP 1.10.2R, DISP 1.10.2-AR and DISP 1.10.2AR, when completing the return, the firm should take into account the following matters.106164(1) If a complaint could fall into more than one category, the complaint should be recorded in the category which the firm considers to form the main part of the complaint.10(2) Under DISP 1.10.2R(1)(b), DISP 1.10.2R(2)(b) or DISP 1.10.2-AR, a firm should report information relating to all complaints which are closed and
EG 5.1.3RP
1Settlements in the FCA context are not the same as ‘out of court’ settlements in the commercial context. An FCA settlement is a regulatory decision, taken by the FCA, the terms of which are accepted by the firm or individual concerned. So, when agreeing the terms of a settlement, the FCA will carefully consider its statutory objectives and other relevant matters such as the importance of sending clear, consistent messages through enforcement action, and will only settle in appropriate
EG 11.2.1RP
2In deciding whether to exercise its powers to seek or require restitution under sections 382, 383 or 384 of the Act, the FCA will consider all the circumstances of the case. The factors which the FCA will consider may include, but are not limited to, those set out below. (1) Are the profits quantifiable? The FCA will consider whether quantifiable profits have been made which are owed to identifiable persons. In certain circumstances it may be difficult to prove that the conduct