Latest by Rachael Healey
No judicial review for FOS defined benefit transfer case
The High Court has rejected an application for permission for judicial review in a number of FOS complaints upheld against the adviser who advised on a defined benefit pension transfer. The adviser had advised on the transfer but not the subsequent investments made after the transfer. The adviser was led to believe that UCIS investments would not be made with the transferred funds but in fact UCIS investments were made. The FOS found that the adviser had given unsuitable pension transfer advice partly on the basis that it should have asked more questions about the ultimate investments and it was not enough to have provided for a general spread of investment type. Permission for judicial review was rejected on the basis that there was nothing unlawful in the FOS decisions including the fact that the adviser was held responsible for 100% of the losses despite the involvement of the separate adviser that advised on the investments following the transfer.
Read moreNational Audit Office on the British Steel Pension Scheme
On Friday the National Audit Office (NAO) published a report on the British Steel Pension Scheme (BSPS), looking at the regulation of pension transfer advice and extent to which compensation has been delivered. The NAO's report does not look at the merits of individual decisions made by the FCA and other organisations but includes some insightful information on the BSPS scheme and the status of complaints at FOS and the FSCS and the NAO's findings. With the report coming just before the FCA is due to publish its consultation on a consumer redress scheme for impacted BSPS members and makes for useful reading for those involved with BSPS complaints.
Read moreSIPPs and FOS - does the Rowanmoor decision change anything?
Last week FOS published a decision it reached last year in a complaint against a SIPP provider involving advised sales. The FOS upheld the complaint, finding that the SIPP provider should have rejected business from the regulated financial adviser, CIB Life and Pensions Limited (CIB), given, broadly, red flags available to the SIPP provider with respect to the operation of CIB's business model including that CIB was not advising on the ultimate investment within the SIPP and as a result such introductions involved a significant risk of consumer detriment. The decision has received quite a bit of press attention - but has it moved the dial for SIPP complaints before FOS or not?
Read moreThe Future of Insolvency Regulation
On 21 December 2021 the Government launched a consultation into the future of insolvency regulation. The changes proposed in the consultation document will have a wide ranging impact on the insolvency profession (and its insurers) with the proposals including: the direct regulation of insolvency firms, the introduction of a single regulatory body with powers to order compensation against insolvency practitioners and firms, a new additional requirements regime, changes to the bond regime and a public register of insolvency practitioners and firms. Many of the changes proposed require primary legislation and so it may be some time before the changes to take effect (if adopted). But there does appear to be some wind behind these proposals given they follow on from the Call for Evidence in 2019 and a more general focus on insolvency issues in the wake of the Covid-19 pandemic.
Read morePure Legal interest only mortgage claim struck out
A claim brought by Pure Legal, who entered administration this week, has been struck out on limitation grounds in a further blow to claims for the alleged mis-selling of interest only mortgages.
Read moreFOS proposals to clear the back-log - attractive or not?
The Financial Ombudsman Service (FOS) has proposed a temporary approach to the classification of certain complaints in an attempt to alleviate their complaints backlog exacerbated during the COVID-19 pandemic. The approach could see firms looking to pro-actively resolve complaints before a defined cut off date before FOS reaches a decision so that the complaint is recorded separately and not as a "change in outcome" (i.e. where a complaint has been rejected by a business and upheld by FOS). The consultation was open for a short two-week period between 4 and 18 October 2021.
Read morePure Legal interest only mortgage claim – judgment in favour of the mortgage broker on limitation grounds as judge finds the damage was patent not latent
The first judgment following trial in a Pure Legal interest only mortgage claim has now been handed down, with the judge dismissing the claim on the basis that it was out of time, with the claimants having all requisite knowledge of the material facts of the damage from the outset of taking out the interest only mortgage. The judge also found the advice was not negligent.
Read moreWhen is a complaint a complaint under DISP?
A Court of Appeal judgment has recently addressed what constitutes a complaint for the purposes of DISP [Clive Davis v Lloyds Bank [2021] EWCA Civ 557]. It is important to identify when a complaint is made as a regulated firm for two primary reasons: first, a complaint triggers the dispute resolution procedure under DISP of the FCA's Handbook and second, it stops time running for the purposes of time bar when it comes to a complaint to FOS.
Read moreAdams v Carey – where does the Court of Appeal's decision leave the SIPP market?
The Court of Appeal has today dismissed Mr Adams' appeal against Carey in respect of COBS 2.1.1R. However, the appeal in relation to s.27 FSMA has been upheld. We discuss the background to the proceedings, the Court of Appeal decision and where it takes the SIPP (and wider financial services) market.
Read moreFOS and the Adams v Carey decision – where are we as the Court of Appeal hearing starts?
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The Week That Was - 18th December 2020
Welcome to the final The Week That Was of 2020, a round-up of key events in the financial services area over the last seven days.
Read moreEquity Release Market Under the Spotlight
Yesterday the FCA published its key findings from exploratory work involving "later life lending". This type of lending is broadly where consumers 55 and over use borrowing to access cash in later life. One of those options is equity release which was the focus of the FCA's work. The FCA's focus on equity release appears to have resulted from an initial review of the broader later life lending market, at which time the FCA identified some "poor outcomes" in equity release sales.
Read moreFCA advice checker – FCA statement on what customers should look out for in DB transfer advice
Wrapping up the documents published by the FCA on 5 June 2020 on the issue of defined benefit pension transfers (DB transfers), we address in this blog the FCA's "advice checker".
Read moreThe future of DB transfer advice - the FCA's policy statement
In part 3 of our blog series on defined benefit pension transfers (DB transfers) we look at the FCA's policy statement on changes to the DB transfer rules. The change that has attracted most press attention is the ban on contingent charging but there are other parts to the policy statement that are likely to have a much more substantive impact on the DB transfer market going forward.
Read moreDB Transfers – the FCA's views on good and bad practice
Continuing our blog series, one of the documents produced by the FCA on Friday was a guidance consultation document intended to meet requests from the industry to help advisers understand the FCA's expectations when advising on pension transfers and conversions. The document includes examples of the FCA's views of good and bad practice in the area of defined benefit pension transfers (DB transfers). The stated aim is to "improve the suitability of DB transfer advice" and "to give advisers confidence to give good advice". The FCA expects firms providing DB transfer advice to read the document and once finalised it is intended that firms use it to identify any weaknesses in their existing processes.
Read moreDB transfers – further findings from the FCA's supervisory review
The FCA produced four documents on Friday addressing defined benefit pension transfers – an update on their supervisory work, a guidance consultation setting out examples of good and bad practice, an "advice checker" for consumers (including helping them consider if they should make a complaint) and a policy statement setting out changes to the defined benefit pension transfer rules which are to largely come into force from 1 October 2020. All are essential reading for an area the FCA continues to fixate on and where it has focussed since the April 2015 pension freedoms.
Read moreAdams v Carey – the judgment – over 2 years in the making, where does it leave the SIPP market
More than two years since the trial in March 2018, the High Court has dismissed the claim against Carey Pensions on all counts. The landmark case is sure to have far reaching ramifications for the SIPP industry and beyond.
Read moreSIPP and SSAS providers face further test following in-specie ruling in favour of HMRC
The Upper Tier Tribunal has overturned a decision of the First Tier Tribunal and found in favour of HMRC in a case that is likely to place further pressure on the SIPP and SSAS markets.
Read moreFOS complaints and hindsight – categorical statement from the Chief Ombudsman
The FCA has been producing a range of temporary measures with the aim of ensuring that firms can work at pace during the pandemic for the benefit of customers. However, where procedures are bypassed or corners cut what will FOS do in response? The response from FOS to that questions raises another – the use of hindsight when coming to its decisions.
Read moreFRC - The Final Curtain Call
The FRC has released its draft budget plan and budget for 2020/21.
Read moreA new issue for SIPP providers?
Self invested personal pension providers are facing a new type of complaint brought in relation to investments made via investment managers – is this a potential area of risk for SIPPs or is this taking their obligations one step too far?
Read moreTrustees of defined benefit schemes – are they on the hook for pension transfers? Yes says the Pension Ombudsman
The Pension Ombudsman has upheld a complaint against the trustees of a defined benefit scheme for failing to warn of the risks of a transfer to a pension liberation scheme. The Pension Ombudsman found that had the trustees provided documentation recommended under guidance from the Pension Regulator and identified and warned the member of certain hallmarks of a pension liberation scheme, the member would not have transferred his pension. The Pension Ombudsman has directed the trustees to reinstate the complainant's pension in the defined benefit scheme and pay £1,000 in distress and inconvenience.
Read moreThe future of SIPPs – FCA responds to the Work and Pensions Committee
A couple of weeks ago we reported on 5 pointed questions raised by the Work and Pensions Committee of the FCA in relation to the SIPP market. Those questions included whether or not the FCA was considering banning non-standard investments in SIPPs. The FCA has now responded. The response includes the FCA's views on the due diligence it expects of SIPP providers when it comes to non-standard investments.
Read moreSIPPs – the work and pensions committee asks some pointed questions of the FCA
The Work and Pensions Committee has sent a letter to the FCA following its review of defined benefit pension transfers raising 5 pointed questions in relation to SIPPs.
Read moreChanges on the horizon - FCA consults on non-workplace pensions
The FCA has issued a discussion paper targeted at the non-workplace pension market. The paper marks the start of the FCA's work looking at whether there is harm in the non-workplace pension market and to better understand the potential presence, nature, extent and cause of any harm.
Read moreTax avoidance schemes and the duty to warn
In a useful judgment summarising when a duty to warn arises, the Court of Appeal overturned the High Court’s decision and raised doubts over the applicable test when considering whether or not financial advisers have been negligent in advising on the risks associated with investments.
Read moreUnauthorised introducers, the Pension Ombudsman and SSASs
The Pension Ombudsman has rejected a complaint against a SSAS provider in relation to investments in carbon credit investments made on the instigation of an unauthorised introducer. In contrast to FOS decisions we have seen, the Pension Ombudsman appeared to put the onus and risk on the consumer for engaging with an unauthorised introducer.
Read moreDB Transfers - now what?
We know that the FCA is looking closely at defined benefit transfers; we already have the FCA's review of redress methodology and the defined benefit transfer rules. We now have the results of the FCA's review, into defined benefit transfers and it makes for uncomfortable reading for the financial services industry.
Read moreNo duty of care owed when conducting a redress procedure
The Court of Appeal has found that banks did not owe a duty of care when conducting a past business review (PBR) of previous sales of interest rate hedging products. Although the decision is in the context of the review procedure agreed between the FCA and banks, the decision is likely to apply to all PBRs, except formal 'consumer redress schemes' under s404 FSMA.
Read moreFCA's review into non-advised retirement product sales
The FCA has published its retirement outcomes review interim report. The report forms part of the FCA's assessment of the impact of the pension freedoms on the pension market and consumer behaviour. Although the focus of the report is non-advised sales it provides a useful insight for all those involved in the pensions market in relation to (1) customer behaviour post the introduction of the pension freedoms and (2) how the pension market is responding to those reforms. The report also puts forward some proposed "remedies" in relation to areas where the FCA considers behaviour may be detrimentally impacting customers. The remedies include permitting customers to access part of their pension at an earlier date in what appears to be an attempt by the FCA to steer customers away from drawdown products.
Read moreComplaints against insolvency practitioners hold steady
The insolvency service has published the latest figures for complaints against insolvency practitioners made to the Complaints Gateway during 2016. The statistics indicate that the Gateway has received a reasonably steady level of complaints since it was established in 2013 but promisingly for practitioners the Gateway does appear to be weeding out more complaints with the Gateway having rejected 29% of complaints in 2016, compared to 18% in the Gateway's first year.
Read moreIn-specie pension contributions - what's the fuss all about?
SIPP and SSAS providers and members continue to be left in limbo over potential tax charges arising from in-specie contributions. HMRC has suspended tax relief on contributions whilst it investigates the position, leaving providers and members without tax relief and the risk of tax assessments back to 2009.
Read moreThe importance of retainer letters
Court strikes out claim that an adviser owed a duty to point out a claim against a former adviser
Read moreEnhanced annuity non-advised sales – not as bad as first feared?
The FCA's thematic review into non-advised enhanced annuity sales found no evidence of an industry wide or systemic failure to provide customers with information about enhanced annuities or the open market option. There will not be a general industry wide remedial action.
Read moreIt doesn't rain it pours… New capital adequacy rules for SIPP firms introduced from 1 September
SIPPs are never far from the headlines at the moment. The most recent issue for SIPP firms to deal with are the new capital adequacy requirements. The effect of the new rules is to place an increased capital burden on SIPP firms holding so-called "non-standard assets".
Read morePensions freedoms where are we now?
On 14 July 2016 the Financial Conduct Authority published three releases relating to pension freedoms. The releases provide an insight into the FCA's areas of concern following the introduction of the pension freedoms in April 2015.
Read morePension Ombudsman, SIPPs and the uncertainty
SIPP trustees and administrators don't have to consider suitability, the Pension Ombudsman has found in a recent complaint.
Read morePanama Papers – what does the leak mean for professional advisers?
The headlines have been full of stories about the so-called Panama Papers since their release 10 days ago.
Read moreUnder-settlements – what factors does the Court take into account
In Dunhill v W Brook and Co and Crossley a damages claim was brought against solicitors and counsel for under-settling a personal injury claim.
Read moreStandstills, FOS and time limits
FOS applies its own time limits when considering complaints.
Read moreResolving mistakes in trust deeds and wills – a new, cheaper and quicker approach?
Claims are often made against professionals arising out of errors in trust deeds and wills.
Read moreStandstills – direct, indirect, connected to, arising out of – has time been stopped?
Defendants are often invited to enter into Standstill Agreements, stopping time for limitation purposes.
Read moreDelegation of regulated activities – warning from the FCA
Adviser firms delegating regulated activities to unregulated third parties have been removed from the FCA's Christmas card list following a notice issued this week.
Read moreLimiting your retainer – success before the Court of Appeal for divorce lawyers
Divorce settlements have attracted a number of professional negligence claims recently.
Read moreThe Pensions Freedoms and FOS – trends in complaints and enquiries
FOS has published a response to the Treasury's consultation paper looking at early exit penalties, the transfer process and communications with consumers in relation to financial advice on pensions.
Read moreSection 14A revisited – how much does a claimant need to know?
The Court of Appeal has looked at whether or not a claimant had sufficient knowledge under Section 14A when it was told that a firm had been negligent but not told that any damage may result.
Read morePension freedoms guidance & advice - Parliament wades in
The Work & Pensions Committee, following a call for evidence in early September, has published a report considering the first six months of the new pension freedoms.
Read moreThe responsibilities of SIPP administrators and trustees for investments – where are we now?
The Pensions Ombudsman has published a decision rejecting a complaint made against a SIPP administrator in relation to the suitability of investments held within a SIPP.
Read morePension freedoms - the 5 month report card
As children head back to school, what would the pension freedoms' report card look like 5 months in from the April reforms?
Read moreTransfers, exit fees and financial advice - what next for the pension freedoms?
What do exit charges, the pension transfer process and financial advice all have in common?
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