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Non-financial misconduct is misconduct, plain and simple
Anna Holmes
The scheme when initially announced was due to end in June 2020, but when it became clear that there had been little improvement by the late spring, it was extended to allow homeowners to apply for up to two payment holidays amounting to a total of six months.
The window for applications for a payment holiday was set to close on 31 October 2020.
Hot on the heels of the Government’s announcement on 31 October that the UK was to enter a further period of lockdown, the FCA published proposals it is making for extended support for people who will experience continued financial difficulty as a result. Their proposal is that the window for applications for a mortgage payment holiday will be extended to 31 January 2021. Before then:
This amounts to re-starting the scheme afresh for those who have not yet had a payment holiday, and extending it for those who have – with the same limitations of a maximum of two holidays amounting to a total deferral time of six months. The home repossession ban has also been extended to 31 January 2021.
This will be welcome news for those who had yet to take advantage of the scheme, or who had only used one holiday but will now require another. But what is the position for those who have already used their full entitlement?
The FCA carried out a survey in July which indicated that 12 million adults in the UK have ‘low financial resilience.’ This means that they might struggle with managing their personal finances, including paying their bills or staying on top of loan repayments. 2 million of these have only become not financially resilient since February 2020.
In light of this, it is likely that those who have already used up their mortgage payment holidays now find themselves in as much financial difficulty as before, but without the comfort of the protection given by the scheme. It is worth noting that whilst mortgage repayments have been suspended for those who deferred payments, interest on their mortgage for some has continued to accrue, which means the possibility of them facing even higher monthly payments once the deferral comes to an end.
The FCA’s Interim Director of Strategy and Competition, Sheldon Mills, has said: ‘We want to remind consumers, especially those who are newly in financial difficulty, that lenders are able to provide you with support. There are options available to you which will reflect the uncertainties and challenges that many customers will face in the coming months. It is also important that households in serious financial difficulty seek debt advice for support.’
The FCA’s guidance for consumers on coming to the end of a payment holiday advises speaking to lenders to find out about what support is available, which might include further pauses to mortgage payments in the short term, or extension of repayment terms or restructuring of a mortgage in the longer-term.
The ‘Mortgages and Coronavirus: Additional Guidance for Firms’ directed at lenders says that the FCA ‘want firms to deliver the following outcomes:
The non-prescriptive nature of these expectations might at first glance suggest a relaxing of the FCA’s requirements for lenders to put the needs of the customer first. However, the guidance itself explains that it is built on the following requirements for firms:
It also makes clear that the guidance is ‘potentially relevant’ to FCA enforcement cases and may be taken into account when assessing whether a firm could or should have known that their conduct in relation to these matters fell below the required standards as outlined above. This is a strong indicator that, although the FCA is taking a step back with regard to the precise nature of the support firms should be giving customers, this is by no means a lowering of expectations as to the level of care which should be extended to those who are struggling financially.
The market knows from previous experience that the FCA takes seriously the needs of customers, even when they are failing to meet their financial obligations. In June 2020 they fined Lloyds Bank plc, Banks of Scotland plc and The Mortgage Business plc a total of £64,046,800 for breaches of Principle 3 (A firm must take reasonable care to organise and control its affairs responsibly and effectively, with adequate risk management systems) and Principle 6 (as above). The banks also implemented a customer redress scheme which resulted in customers receiving redress payments totalling an estimated £300 million.
When announcing the fine, the FCA clarified that, 'Customers should still pay what is owed, but banks are obliged to treat their customers fairly when making new payment arrangements…Firms should take notice of the action we have taken today to ensure that their own treatment of customers meets our expectations.' The fine was in relation to actions the banks took, and failed to take, between April 2011 and December 2015, when customers were not experiencing especially acute financial difficulties as the result of a pandemic. The FCA has made clear that although it recognises the challenges faced by firms in the current climate, the circumstances mean it considers the fair and appropriate treatment of customers to be even more important than in usual times.
Given that financial institutions have already experienced significant pressure and operational difficulties due to the new ways of working in the pandemic, there may be a danger of them being overwhelmed as customers seek urgent advice and assistance as their payment holidays come to an end. It remains to be seen whether firms are able to manage the demand so as to give sufficient regard to the interests of their customers going forward, or whether the pressures created by the expiry of these holidays leads to shortcomings which may be subject to enforcement action by the regulator in due course.
For further information on the issues raised in this news post, please contact a member of our criminal litigation team.
Anna Holmes is an Associate in our Criminal Litigation team. She is an experienced criminal law practitioner who has represented clients in respect of a wide range of offences and has extensive experience in dealing with vulnerable clients.
HM Treasury has published a draft statutory instrument which, when brought into force, will introduce a new regulatory regime for cryptoassets in the UK.
On 6 February the House of Lords Financial Services Regulation Committee published its response to the latest iteration of the FCA’s proposals to “name and shame” firms under investigation by the regulator.
In March 2024 the FCA published a clear warning to those advertising trading and investments on social media about the risks of doing so, making it clear that it will “will take action against those touting financial products illegally.” Just two months later, in May 2024, the regulator announced that it had commenced criminal proceedings against a number of individuals for advertising foreign trading schemes on their social media platforms.
The FCA is conducting a review into whether motor finance customers were overcharged as a result of the widespread use of discretionary commission arrangements in the motor finance industry. It had expected to set out its next steps in light of this review in September 2024. However, it has announced that it will not now do so until May 2025.
Maintaining the integrity and cleanliness of the financial markets remains a key FCA priority and, indeed, is a statutory legal obligation on the regulator. Against that, however, is the fact that FCA’s track record in taking enforcement action against insider dealing and other forms of abusive behaviour is relatively poor. Since 2017 it has only achieved three criminal convictions for insider dealing, whilst its record for imposing civil fines on firms and individuals for breaches of the Market Abuse Regulation (“MAR”) is also unimpressive.
The FCA’s long awaited anti-greenwashing rule came into force on 31 May 2024. This rule is part of the wider Sustainability Disclosure Requirements regime and reflects the FCA’s strong commitment to ESG and to supporting the Government’s commitment to achieving net zero by 2050.
The FCA’s recent consultation (CP24/2) on changes to its enforcement process has provoked what appears to be unanimous opposition from government and industry bodies. Of particular concern is the proposal in consultation paper (“the CP”) that the FCA will publish information about its enforcement investigations, including the identity of the subject of the investigation, where it assesses it to be in the public interest to do so.
For firms regulated by the Financial Conduct Authority (FCA), it is vital that the business – and its relevant employees – ensure that its conduct is without reproach in order to avoid supervisory or regulatory difficulties. This extends to issues of governance and administrative matters, as well as more obvious issues of conduct (such as, for example, financial misconduct) which often receive more press.
This article first featured in Employee Benefits in November 2023.
A recent sequence of adverse decisions by the Upper Tribunal could have significant implications for future Financial Conduct Authority cases.
Under the Senior Managers and Certification Regime (“SMCR”), which was introduced by the Financial Conduct Authority (“FCA”) to seek to remedy perceived industry wide failings following the 2008 financial crash, regulated staff must meet certain standards of fitness and propriety and will be personally accountable to the FCA for any failure to do so.
Firms covered by the SMCR are required to assess, both at the point of recruitment and on an annual basis, whether SMCR staff are fit and proper to perform their role. In the case of senior managers, firms that are covered by the regime must also seek approval from the FCA prior to appointment and in many cases the FCA may wish to closely scrutinise any such application.
Non-financial misconduct has been an area of increasing regulatory focus for the Financial Conduct Authority (FCA) over the last five years. To date, published regulatory outcomes have focused on the most egregious end of the spectrum, with the FCA handing out bans and fines for those already convicted in the criminal courts of serious sexual offences. However, these cases provide little guidance for FCA-regulated firms grappling with allegations of more nuanced conduct, such as the inappropriate use of social media on a personal
Pre-Brexit, some 8,000 financial services firms based in the EA or EEA relied on the mutual passporting regime to do business in the UK. Since 1 January 2021, such firms have been able to operate under a transitional temporary permissions regime (TPR). While some of those firms have now exited the UK market, most of those intending to continue to operate here are required to apply for full UK authorisation. The deadline for applications is 31 December 2022.
The FCA’s transformation to becoming an assertive, front footed regulator has been accelerated by three recent developments, all of which prioritise the protection of consumers.
This half-year update provides an overview of recent enforcement activity by the Financial Conduct Authority (“FCA”) in the period from January to June 2022.
As the cost of living continues to rise, and subsequent demand for credit increases, the FCA has been clear with lenders as to its expectations for their treatment of customers. Indeed, with inflation predicated to reach 14%, consumers will see a significant reduction in disposable income and many may experience financial vulnerability for the first time. In this context, the FCA has clearly identified that a potential increase in dependence on credit poses significant risks to consumers.
In a case that attracted national media coverage and emphasises the crucial importance of regulatory compliance and the highest standards of professional conduct in the financial services sector, the High Court dismissed a breach of contract claim brought by an investment manager.
For the fourth year the FCA has published research on the changing relationship between consumers and cryptoassets. In spite of the pandemic, the strong upward trend in public engagement and media coverage has continued, with the FCA estimating 2.3 million adults now hold cryptoassets.
Global financial markets are preparing to transition away from the use of the London Interbank Offered Rate (“LIBOR”) and adopt an appropriate alternative risk free rate (“RFR”) by the end of 2021. What are the reasons for the move away from LIBOR, the progress to date in terms of identifying the Sterling Overnight Index Average (“SONIA”) as the most appropriate alternative rate in the Sterling markets, and the steps still required to be taken to ensure such markets are ready for the phasing out of LIBOR by the end of the year
At the end of last month, the Competition and Markets Authority (CMA) published a letter written to Danske Bank concerning its breach of the Small and Medium-sized Enterprise (SME) Banking Behavioural Undertakings 2002, following loans it had offered under the ‘Bounce Back Loan Scheme’.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
Anna Holmes
Nick Ralph
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