Related provisions for SUP 13A.5.4A
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Under section 138A(4) of the Act, the appropriate regulator7 may not give a waiver unless it is satisfied that:77(1) compliance by the firm with the rules, or with the rules as unmodified, would be unduly burdensome, or would not achieve the purpose for which the rules were made; and(2) the waiver would not adversely affect the advancement of, in the case of the PRA, any of its objectives and, in the case of the FCA, any of its operational objectives.77
7The FCA must consult the PRA before publishing or deciding not to publish a waiver which relates to:(1) a PRA-authorised person; or(2) an authorised person who has as a member of its immediate group a PRA-authorised person;unless the waiver relates to rules made by the FCA under sections 247 or 248 of the Act.
The appropriate regulator7 will acknowledge an application promptly and if necessary will seek further information from the firm. The time taken to determine an application will depend on the issues it raises. A firm should make it clear in the application if it needs a decision within a specific time.76
The appropriate regulator7 will treat a firm's application for a waiver as withdrawn if it does not hear from the firm within 20 business days of sending a communication which requests or requires a response from the firm. The appropriate regulator7 will not do this if the firm has made it clear to the appropriate regulator7 in some other way that it intends to pursue the application. 3777
In some cases, the appropriate regulator7 may give a modification of a rule rather than direct that the rule is not to apply. The appropriate regulator7 may also impose conditions on a waiver, for example additional reporting requirements. A waiver may be given for a specified period of time only, after which time it will cease to apply. A firm wishing to extend the duration of a waiver should follow the procedure in SUP 8.3.3 D. A waiver will not apply retrospectively.77
If the appropriate regulator7 believes that a particular waiver given to a firm may have relevance to other firms, it may publish general details about the possible availability of the waiver. For example, IPRU(INV) 3-80(10)G explains that a firm that wishes to use its own internal model to calculate its position risk requirement (PRR) will need to apply for a waiver of the relevant rules.7
Under section 138A(1) of the Act the appropriate regulator7 may give a waiver with the consent of a firm. This power may be used by the appropriate regulator7 in exceptional circumstances where the appropriate regulator7 considers that a waiver should apply to a number of firms (for example, where a rule unmodified may not meet the particular circumstances of a particular category of firm). In such cases the appropriate regulator7 will inform the firms concerned that the waiver
For an application for a waiver of the presumption of contravention of a binding rule, which is actionable under section 138D7 of the Act, the appropriate regulator7 would normally wish to be satisfied that the evidential rule is itself unduly burdensome or does not achieve the purpose of the rule.277
(1) Section 60(2A) of the Act (Applications for approval) says that, if a firm is applying for approval from the FCA or the PRA for a person to perform a designated senior management function, the regulator to which the application is being made must require the application to contain, or be accompanied by, a statement setting out the aspects of the affairs of the firm which it is intended that the person will be responsible for managing in performing the function. (2) That statement
(1) This section is about the FCA's requirements for statements of responsibilities.(2) However, where applications and notifications relate both to FCA-designated senior management functions and to PRA ones, the regulators’ requirements are consistent with each other.(3) The general material in this section (SUP 10C.11.13G to SUP 10C.11.35G) applies to statements of responsibilities submitted in all the cases covered by this section. It covers statements of responsibilities
(1) This paragraph sets out non-exhaustive examples of potential changes which, in the FCA's view, may be significant and thus require the submission of a revised statement of responsibilities.(2) A variation of the FCA-approved SMF manager's approval, either at the firm's request or at the FCA's or PRA's initiative, resulting in the imposition, variation or removal of a condition or time limit, may involve a significant change.(3) Fulfilling or failing to fulfil a condition on
(1) SUP 10C.11.13D means that, at any time, a firm should have a single document for an SMF manager that:(a) contains statements of responsibilities for all designated senior management functions for which that SMF manager has approval; and(b) where relevant, contains statements of responsibilities for all designated senior management functions for which the firm is applying for approval.(2) The document in (1) should cover PRA-designated senior management functions as well as
Table: examples of how the requirements for submitting statements of responsibilities work1ExampleComments(1) A firm applies for approval for A to perform the executive director function and the money laundering function.There should be a single statement of responsibilities document that covers the two functions.The combined document should be included with the application for approval.(2) Firm X applies for approval for A to perform the executive director function. Firm Y applies
(1) A complete set of current statement of responsibilities means all statements of responsibilities that the firm has provided to the FCA or PRA as revised under section 62A of the Act.(2) A statement of responsibilities is not current if the person in question no longer performs any of the controlled function to which it relates.
(1) Where:(a) an FCA-prescribed senior management responsibility; or(b) any function allocated under SYSC 4.7.8R (Allocation of overall responsibility for a firm’s activities, business areas and management functions) or SYSC 4.8.10R (Local responsibility for a branch’s activities, business areas and management functions)2;is divided or shared between several SMF managers, the statement of responsibilities for each SMF manager should:(c) explain why this has been done; and(d) give
If a person's job for a firm involves performing: (1) an FCA-designated senior management function, the firm should apply to the FCA for approval;(2) a PRA-designated senior management function, the firm should apply to the PRA for approval;(3) both an FCA-designated senior management function and a PRA-designated senior management function, the firm should apply to both the FCA and the PRA for approval (the purpose of SUP 10C.9 is to cut down the need for this sort of dual a
The FCA is under a duty, under section 59A of the Act (Specifying functions as controlled functions: supplementary), to exercise the power to specify any senior management function as an FCA controlled function in a way that it considers will minimise the likelihood that approvals need to be given by both the FCA and the PRA for the performance by a person of senior management functions in relation to the same PRA-authorised person.
A person (referred to as ‘A’ in this rule) is not performing an FCA governing function (referred to as the ‘particular’ FCA governing function in this rule) in relation to a PRA-authorised person (referred to as ‘B’ in this rule), at a particular time, if:(1) A has been approved by the PRA to perform any PRA-designated senior management function in relation to B;(2) throughout the whole of the period between the time of the PRA approval in (1) and the time in question, A has been
Table: Examples of how the need for dual FCA and PRA approval in relation to PRA-authorised persons is reduced1ExampleWhether FCA approval requiredWhether PRA approval requiredComments(1) A is appointed as chief risk officer and an executive director.No. He is not treated as performing the executive director function.YesChief risk officer is a PRA-designated senior management function. A’s functions as a director will be included in the PRA-designated senior management function.
The appropriate regulator3 is required by sections 138B(1) and (2)3 of the Act to publish a waiver unless it is satisfied that it is inappropriate or unnecessary to do so. If the appropriate regulator3 publishes a waiver, it will not publish details of why a waiver was required or any of the supporting information given in a waiver application.333
3The FCA must consult the PRA before publishing or deciding not to publish a waiver which relates to:(1) a PRA-authorised person; or(2) an authorised person who has as a member of its immediate group a PRA-authorised person;unless the waiver relates to rules made by the FCA under sections 247 or 248 of the Act.
When considering whether it is satisfied under section 138B(2)3, the appropriate regulator3 is required by section 138B(3)3 of the Act:333(1) to take into account whether the waiver relates to a rule contravention of which is actionable under section 138D3 of the Act (Actions for damages); Schedule 5 identifies such rules;3(2) to consider whether its publication would prejudice, to an unreasonable degree, the commercial interests of the firm concerned, or any other member of its
Waivers can affect the legal rights of third parties, including consumers. In the appropriate regulator's3 view it is important that the fact and effect of such waivers should be transparent. So the fact that a waiver relates to a rule that is actionable under section 138D3 of the Act (see SUP 8.6.2 G (1)) will tend to argue in favour of publication.33
In considering whether commercial interests would be prejudiced to an unreasonable degree (see SUP 8.6.2 G (2)), the appropriate regulator3 will weigh the prejudice to firms' commercial interests against the interests of consumers, markets and other third parties in disclosure. In doing so the appropriate regulator3 will consider factors such as the extent to which publication of the waiver would involve the premature release of proprietary information to commercial rivals, for
If, after taking into account the matters in SUP 8.3.3 D to SUP 8.6.6 G, a firm believes there are good grounds for the appropriate regulator3 either to withhold publication or to publish the waiver without disclosing the identity of the firm, it should make this clear in its application. If the appropriate regulator3proposes to publish a waiver against the wishes of the firm, the appropriate regulator3 will give the firm the opportunity to withdraw its application before the
A decision to withhold a waiver or identity of a firm from publication may be for a limited period only, usually as long as the duration of the relevant grounds for non-publication. If the appropriate regulator3 proposes to publish information about a waiver that had previously been withheld, it will first give the firm an opportunity to make representations.3
24Under section 55H of the Act, an FCA-authorised person may apply to the FCA to vary its Part 4A permission to:(1) allow it to carry on further regulated activities, other than a PRA-regulated activity; or(2) reduce the number of regulated activities it is permitted to carry on; or (3) vary the description of its regulated activities (including by the removal or variation of any limitations).
24Where a firm applies to the PRA for the variation of its Part 4A permission, the FCA, in giving consent to such an application or imposing any requirements on the firm, is required by section 55B(3) of the Act to ensure that the firm satisfies and will continue to satisfy the threshold conditions for which the FCA is responsible in relation to all the regulated activities for which the firm has or will have Part 4A permission after the variation.
24The FCA's power to vary a Part 4A permission after it receives an application from a firm extends to including in the Part 4A permission as varied any provision that could be included as though a fresh permission was being given in response to an application under section 55A of the Act (Application for permission). Under section 55E of the Act (Giving permission: the FCA) the FCA may:(1) incorporate in the description of a regulated activity such limitations (for example, as
24Where a firm has made an application to the PRA for the variation of its Part 4A permission and requirements are imposed by the FCA which were not included in the firm's application, the FCA will be required to issue the firm with a warning notice and decision notice (see SUP 6.3.39 G).
(1) Firms should be aware that the appropriate regulator may exercise its own-initiative variation power to vary or cancel their Part 4A permission if they do not (see section 55J of the Act (Variation or cancellation on initiative of regulator)):2424(a) commence a regulated activity for which they have Part 4A permission24 within a period of at least 12 months from the date of being given; or24(b) carry on a regulated activity for which they have Part 4A permission24 for a period
(1) An FCA-approved SMF manager's job may change from time to time as a result, for instance, of a change in personal job responsibilities or a firm'sregulated activities. (2) Where the changes will involve the SMF manager performing one or more FCA-designated senior management functions different from those for which approval has already been granted, an application must be made to the FCA for approval for the SMF manager to perform those FCA-designated senior management functions.(3)
(1) A firm must notify the FCA no later than seven business days after an FCA-approved SMF manager ceases to perform an FCA-designated senior management function.(2) It must make that notification by submitting to the FCA a completed Form C (SUP 10A Annex 6R).(3) If: (a) the firm is also making an application for approval for that approved person to perform a controlled function within the same firm or group; and(b) ceasing to perform the FCA-designated senior management function
If a firm is required to notify the FCA about a PRA-approved SMF manager who is not an FCA-approved SMF manager under one of the sections of the Act referred to in SUP 10C.14.28R, it should make a single notification under the PRA's requirements. There is no need for a separate notification to the FCA.
Therefore, if a person's job for a firm involves:(1) an FCA controlled function, the firm should apply to the FCA for approval;(2) a PRA controlled function, the firm should apply to the PRA for approval;(3) both an FCA controlled function and a PRA controlled function, the firm should apply to both the FCA and the PRA for approval (the purpose of SUP 10A.11 is to cut down the need for this sort of dual approval).
(1) [deleted]31(2) For a Solvency II firm and a small non-directive insurer3 only, SUP 10A.11.12R disapplies the FCA governing functions for a person who is approved to perform a PRA controlled function, subject to the conditions in SUP 10A.11.12R.1(3) The FCA functions disapplied in accordance with the FCA2governing functions overlap rule for Solvency II firms and small non-directive insurers3 (SUP 10A.11.12R) are absorbed into the relevant PRA controlled function by virtue
(1) Every firm will have one or more persons responsible for directing its affairs. These persons will be performing the FCA governing functions and will be required to be FCA-approved persons unless the application provisions in SUP 10A.1, or the particular description of an FCA controlled function, provide otherwise. For example, each director of a company incorporated under the Companies Acts will perform an FCA governing function. However, if the firm is a PRA-authorised person,
(1) The director function applies in relation to a PRA-authorised person, as set out below3. 2(2) 3For a Solvency II firm or a small non-directive insurer3, the FCAdirector function may apply if the person carrying out the function is not approved to carry out a PRA controlled function or the other conditions in SUP 10A.11.12R (minimising overlap with the PRA approved persons regime) are not satisfied.2
Table: FCA-prescribed senior management responsibilities for third-country relevant authorised persons.FCA-prescribed senior management responsibility in relation to the branchExplanationEquivalent PRA-prescribed UK branch senior management responsibility(1) Responsibility for the firm’s performance of its obligations under the senior management regimeThe senior management regime means the requirements of the regulatory system applying to relevant authorised persons insofar as
(1) A firm must ensure that, at all times, one or more of its SMF managers has overall responsibility (subject to the branch’sgoverning body) for each of the activities, business areas and management functions of the branch that are under the management of the branch’sgoverning body.(2) A firm must ensure that, at all times, one or more of its SMF managers has responsibility for each of the activities, business areas and management functions of the branch not covered by (1).(3)
(1) The purpose of SYSC 4.8.10R is to avoid gaps. It is to ensure that an SMF manager has responsibility for every part of a branch’s activities, business areas and management functions not otherwise covered by other parts of this section or by the equivalent PRA requirements.(2) SYSC 4.8.10R(1) refers to the activities, business areas and management functions of the branch that are under the management of the branch’sgoverning body. However, the FCA recognises that for some branches,
(1) A third-country relevant authorised person should allocate responsibility to its SMF managers for every area of the activities of its branch.(2) This is required by a mixture of: (a) SYSC 4.8.6R (FCA-prescribed senior management responsibility);(b) SYSC 4.8.10R (Local responsibility for a firm’s activities, business areas and management functions);(c) the requirements for FCA-designated senior management functions; and(d) the corresponding PRA requirements.
Section 395 of the Act (The FCA's and PRA's procedures) requires the FCA2 to publish a statement of its procedure for the giving of statutory notices. The procedure must be designed to secure, among other things, that the decision which gives rise to the obligation to give a statutory notice is taken by a person not directly involved in establishing the evidence on which that decision is based or by two or more persons who include a person not directly involved in establishing
2Section 395 of the Act also requires the FCA to publish a statement of its procedure for decisions which give3 rise to an obligation for the PRA to include a statement under section 387(1A) in a warning notice or a statement under section 388(1A) in a decision notice as follows:(1) Section 387(1A) provides that where the FCA proposes to refuse consent for the purposes of section 55F, 55I or 59 of the Act, or to give conditional consent as mentioned in section 55F(5), 55I(8) or
2Where an application for Part 4A permission is made to the PRA as the appropriate regulator (section 55A(2)(a) of the Act), the PRA may only give permission with the consent of the FCA (section 55F of the Act). FCA consent can be conditional on the PRA imposing limitations or specifying the permission is for certain regulated activities only.
2Where an application to vary a Part 4A permission is made to the PRA as the appropriate regulator (section 55A(2)(a) of the Act), the PRA may only give permission with the consent of the FCA (section 55I of the Act). The FCA may withhold its consent to a proposed variation if it appears to it that it is desirable to do so in order to advance one or more of its operational objectives. FCA consent can be conditional on the PRA imposing limitations, or the PRA specifying the permission
2Where an application to perform a controlled function is made to the PRA as the appropriate regulator, the PRA can only approve a person to perform a controlled function with the consent of the FCA (section 59(4)(b) of the Act). Where the application is a relevant senior management application, the FCA’s consent can be conditional on the PRA imposing conditions, or the PRA giving approval only for a limited period.3
8Paragraph 3C of Schedule 6 to the Act sets out the appropriate non-financial resources threshold condition which is relevant to the discharge by the FCA of its functions under the Act in relation to firms carrying on, or seeking to carry on, regulated activities which include a PRA-regulated activity.
8The guidance in COND 2.4 should be read as applying to both paragraph 2D of Schedule 6 of the Act and, as far as relevant to the discharge by the FCA of its functions in respect of firms carrying on, or seeking to carry on, a PRA-regulated activity under the Act, paragraph 3C of Schedule 6 of the Act.
(1) [deleted]88(2) In this context, the FCA will interpret the term 'appropriate88' as meaning sufficient in terms of quantity, quality and availability, and 'resources' as including all financial resources (though only in the case of firms not carrying on, or seeking to carry on, a PRA-regulated activity)8, non-financial resources and means of managing its resources; for example, capital, provisions against liabilities, holdings of or access to cash and other liquid assets, human
(1) [deleted]88(2) Although8 it is the firm that is being assessed, the FCA8 may take into consideration the impact of other members of the firm's group on the adequacy of its resources8, where relevant to the discharge of the FCA's functions8. For example, in relation to a firm other than a firm carrying on, or seeking to carry on, a PRA-regulated activity, the FCA8 may assess the consolidated solvency of the group. The FCA's8 approach to the consolidated supervision of such
(1) [deleted]88(2) Relevant matters to which the FCA may have regard when assessing whether a firm will satisfy, and continue to satisfy, this threshold condition8may include but are not limited to:(a) (in relation to a firm other than a firm carrying on, or seeking to carry on, a PRA-regulated activity),8 whether there are any indications that the firm may have difficulties if the application is granted, at the time of the grant or in the future, in complying with any of the
A firm authorised under Part 4A5 of the Act (Permission to carry on regulated activity) has a single Part 4A permission5 granted by the FCA or the PRA. A firm'sPart 4A permission5 specifies all or some of the following elements (see PERG 2 Annex 2 (Regulated activities and the permission regime) and the information online at the FCA and PRA websites):5555335(1) a description of the activities the firm may carry on, including any limitations;(2) the specified investments involved;
5If an FCA-authorised person wishes to change its Part 4A permission to:(1) add a regulated activity, other than a PRA-regulated activity; or(2) remove a regulated activity from those to which the permission relates; or(3) vary the description of a regulated activity to which the permission relates; or(4) cancel the permission;it can apply to the FCA under section 55H of the Act (Variation by FCA at request of authorised person).
5If an FCA-authorised person wishes to change its Part 4A permission, by adding to the regulated activities to which the permission relates one or more regulated activities, which include a PRA-regulated activity, it can apply to the PRA under section 55I of the Act (Variation by PRA at request of authorised person). The PRA can determine such an application only with the consent of the FCA.
Variation and cancellation of Part 4A permission and imposition, variation and cancellation of requirements. See SUP 6.2.3A G to SUP 6.2.3E G55QuestionVariation of Part 4A permissionCancellation of Part 4A permission Imposition, variation and cancellation of requirementsWhat does the application apply to?Individual elements of a firm'sPart 4A permission. Variations may involve adding or removing categories of regulated activity or specified investments or varying or removing any
A firm (other than the Society and an MTF operator in relation to its MTF business5) must notify to the FCA (in its own capacity and, if applicable, in its capacity as collection agent for the PRA) the value (as at the valuation date specified in Part 5 of FEES 4 Annex 1AR6) of each element of business on which the periodic fee payable by the firm is to be calculated.12
A firm (other than the Society) must send to the FCA (in its own capacity and, if applicable, in its capacity as collection agent for the PRA)12 in writing the information required under FEES 4.4.1 R as soon as reasonably practicable, and in any event within two months, after the date specified as the valuation date in Part 5 of FEES 4 Annex 1AR in relation of fees payable to the FCA6 (or FEES 4.2.7B R where applicable).2121212
In most cases a firm will provide the information required by this section as part of its compliance with the provisions of SUP. To the extent that the FCA6 does not obtain sufficient, or sufficiently detailed, information it 6 may seek this by using the general information gathering powers (see SUP 2 (Information gathering by the FCA or PRA6 on its own initiative)).11111111111111
An FCA-approved person's job may change from time to time as a result, for instance, of a change in personal job responsibilities or a firm'sregulated activities. Where the changes will involve the person performing one or more FCA controlled functions different from those for which approval has already been granted, then an application must be made to the FCA for approval for the person to perform those FCA controlled functions. The firm must take reasonable care to ensure that
(1) A firm must submit to the FCA a completed Form C, in the form set out in SUP 10A Annex 6R, no later than seven business days after an FCA-approved person ceases to perform an FCA controlled function.2(2) If:2(a) the firm is also making an application for approval for that approved person to perform a controlled function within the same firm or group; and2(b) ceasing to perform the FCA controlled function in (1) has triggered a requirement to make that application for approval:2(i)
Outsourcing arrangements1Outsourcing arrangementsExplanationSubmitting formFirm A to firm BThe FCA will consider A to have taken reasonable care if it enters into a contract with B under which B is responsible for ensuring that the relevant FCA-designated senior management functions are performed by FCA-approved SMF managers, and that it is reasonable for A to rely on this.Firm B submits FCA-approved persons forms on behalf of firm A.Outsourcing by A to B (both being a member
(1) An application by a firm for the FCA's approval under section 59 of the Act (Approval for particular arrangements) for the performance of an FCA-designated senior management function must be made by completing Form A (SUP 10C Annex 2D), except where SUP 10C.10.9D requires Form E.(2) If a firm must make an application using Form A, it must use Form A (shortened form) if:(a) the person has current approved person approval to perform:(i) an FCA controlled function that is a significant
(1) If a firm is applying for a change of the type described in SUP 10C.13.3G(1) or SUP 10C.13.3G(2), the firm should apply to the FCA if the FCA imposed that condition, even if the approval was given by the PRA. (2) If the firm is applying for the imposition of a new condition, the firm should apply to the FCA if the approval to which the application relates was given by the FCA.(3) In other cases, the application should be to the PRA.
Under section 63ZB of the Act (Variation of senior manager's approval on initiative of regulator), the FCA may vary an approval given by the FCA or the PRA for the performance of a designated senior management function if the FCA considers that it is desirable to do so to advance one or more of its operational objectives.
FCA6 staff under executive procedures will take the decision to give a warning notice if the FCA6 proposes to:66(1) refuse an application for a Part 4A permission6 or to refuse an application to cancel a Part 4A permission6;66(2) impose a limitation or a requirement which was not applied for, or specify a narrower description of regulated activity than that applied for, on the grant of a Part 4A permission6;6(3) refuse an application to vary a Part 4A permission6, or to restrict
6FCA staff under executive procedures will take the decision where the FCA is proposing or deciding to:(1) refuse its consent to the granting by the PRA of an application for a Part 4A permission, or give its consent subject to conditions; (2) refuse its consent to the granting by the PRA of an application for the variation of a Part 4A permission, or give its consent subject to conditions; or(3) refuse its consent to the granting by the PRA of an application to perform a controlled
Some of the distinguishing features of notices given under enactments other than the Act are as follows: (1) [deleted]66(2) [deleted]66(3) Friendly Societies Act 1992, section 58A1: The warning notice and decision notice must set out the terms of the direction which the FCA6 proposes or has decided to give and any specification of when the friendly society is to comply with it. A decision notice given under section 58A(3) must give an indication of the society's right, given by
15The guidance in COND 2.5 should be read as applying to both paragraph 2E of Schedule 6 to the Act and, as far as relevant to the discharge by the FCA of its functions under the Act in respect of firms carrying on, or seeking to carry on, a PRA-regulated activity, paragraph 3D of Schedule 6 of the Act.
(1) The emphasis of the threshold conditions set out in paragraphs 2E and 3D of Schedule 6 of the Act15 is on the suitability of the firm itself. The suitability of each person who performs a controlled function will be assessed by the FCA and/or the PRA, as appropriate,15 under the approved persons regime (in relation to an FCA-approved person, 16see SUP 10A (FCA Approved Persons), SUP 10C (FCA senior management regime for approved persons in relevant authorised persons)16 and
Examples of the kind of particular considerations to which the FCA may have regard when assessing whether a firm will satisfy, and continue to satisfy, this threshold condition include, but are not limited to, whether:1515(1) the firm has been open and co-operative in all its dealings with the FCA15and any other regulatory body (see Principle 11 (Relations with regulators)) and is ready, willing and organised to comply with the requirements and standards under the regulatory system