Final Notice

On , the Financial Conduct Authority issued a Final Notice to Anthony Dale Cuming
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FINAL NOTICE

1.
ACTION

1.1.
For the reasons given in this Final Notice, the Financial Conduct Authority (“the

Authority”) hereby:

(1)
imposes on Mr Cuming a financial penalty of £1,691,259, pursuant to section 66

of the Financial Services and Markets Act 2000 (“the Act”); and

(2)
makes an order prohibiting Mr Cuming from performing any function in relation to

any regulated activity carried on by an authorised person, exempt person or

exempt professional firm, pursuant to section 56 of the Act.

1.2.
However, the Authority has agreed not to enforce the financial penalty provided that

Mr Cuming pays £2,000 to the Financial Services Compensation Scheme (the “FSCS”).

The £2,000 that Mr Cuming has agreed to pay to the FSCS represents substantially all

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of his available assets to meet a penalty or judgment.

2.
REASONS

2.1.
Pensions are a traditional way of saving and investing money in a tax-efficient way for

retirement. The value of an individual’s pension can have a significant impact on their

quality of life during retirement and, in some circumstances, may affect whether they

can afford to retire at all. It is of paramount importance that consumers of financial

services can have confidence that persons exerting significant influence at authorised

firms are accountable to the regulator and have been approved as fit and proper.

2.2.
Between 16 January 2015 and 30 November 2017 (“the Relevant Period”), Mr Cuming,

an independent financial adviser (“IFA”), was an approved person at Grosvenor

Butterworth (Financial Services) Limited (“GBFS”), a small IFA firm authorised by the

Authority to conduct regulated activities, including arranging deals in investments and

advising on pension opt-outs and pension transfers (“Pension Transfers”). By the start

of the Relevant Period, Mr Cuming had over 13 years’ experience of working in financial

services and advising on investments and over 7 years’ experience of working as an

IFA.

2.3.
Mr Cuming was the sole person at GBFS approved to perform the controlled functions

of CF1 (Director), CF10 (Compliance Oversight) and CF11 (Money Laundering

Reporting). He was also responsible for Insurance Mediation, had responsibility for

MCD Intermediation, and was one of the 14 individuals at GBFS approved to perform

the CF30 (Customer) controlled function during the Relevant Period. As CF30, Mr

Cuming’s role included giving advice or performing related activities in connection with

Pension Transfers, pension conversions or pension opt-outs for retail clients.

The Scheme

2.4.
During the Relevant Period, Mr Cuming participated in a scheme involving a number

of firms and individuals (the “Scheme”), including Kyle Jones (“Mr Jones”) who was

another IFA at GBFS, and Steven Sahota (“Mr Sahota”) who was a discretionary fund

manager at Beaufort Securities Limited (“BSL”), a small to medium retail advisory

stockbroker authorised by the Authority, as well as other IFAs, an Unregulated

Individual (the “Unregulated Individual”) who oversaw the Scheme and certain

Introducers (“Introducers”). The Introducers were unregulated firms or individuals who

referred pension holders to regulated IFAs for advice and recommendations concerning

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their pension arrangements.

2.5.
As part of a team, Mr Sahota established and grew a discretionary fund management

service (“DFM Service”), which managed portfolios of assets, including the Strategic

Income Portfolio (the “Strategic Income Portfolio”).

2.6.
The Scheme involved certain participants (principally the Unregulated Individual and

his firms) identifying companies (the “Investment Companies”) which were seeking to

raise capital and contacting them with the promise of receiving significant capital

through BSL’s DFM Service. The Investment Companies issued bonds or shares which

were nearly all high-risk and of limited liquidity.

2.7.
In return, the Investment Companies were to make substantial payments by way of

marketing fees, marketing allowances, introducer fees, commission or other fees

(“Marketing Fees”), which would be distributed between the participants in the

Scheme. The investment products issued by the Investment Companies that agreed

to pay the Marketing Fees (“the Underlying Investments”) were included in the

Strategic Income Portfolio.

2.8.
Incentivised by Marketing Fees, the IFAs involved in the Scheme, including Mr Cuming

and Mr Jones at GBFS, would advise customers, who had been contacted by

Introducers involved in the Scheme, to transfer or switch their existing pensions to the

Beaufort SIPP (“Beaufort SIPP”), a white-labelled self-invested personal pension

(“SIPP”) created by BSL. These pension funds were invested by the DFM Service, at

the direction of Mr Sahota, into products contained within BSL’s Strategic Income

Portfolio, including the Underlying Investments.

2.9.
Certain Introducers would seek to: (a) influence the advice of the IFAs and Mr Sahota’s

investment management decisions, (b) direct Mr Sahota in relation to the investment

of pension holders’ funds into specific investments (including the Underlying

Investments) and (c) direct the IFAs to act as their agent.

2.10.
Pension holders’ funds were specifically placed in the Strategic Income Portfolio and

thereby invested in the Underlying Investments, regardless of whether they were

suitable for those pension holders, so that those involved in the Scheme would receive

a share of the Marketing Fees. Mr Sahota’s team was responsible for these investment

decisions, which were effected by an assistant (who was not involved in the Scheme).

Mr Sahota failed to ensure that pension holders were placed in suitable investments

as he was driven by the desire for personal gain (rather than by the needs of the

pension holders) and exposed the pension holders to a significant risk of detriment and,

in many cases, actual loss.

2.11.
During the Relevant Period, there was little oversight of the DFM Service by BSL senior

management or by BSL’s discretionary fund management committee, whose purpose

was to monitor and supervise the activities of the discretionary fund managers across

BSL.

2.12.
In total, approximately £5.9 million in Marketing Fees was paid to the various

participants in the Scheme. Mr Cuming received directly at least £780,000 in Marketing

Fees, out of which he paid Mr Jones around £177,900 and Mr Sahota around £126,300,

retaining approximately £433,000 for himself. The payment of these Marketing Fees

was not disclosed to the pension holders and was to the ultimate detriment of the

pension holders whose funds were invested in the Underlying Investments. These

Marketing Fees were separate from the fees charged by the IFAs advising the pension

holders and by the DFM Service, which were payable by the pension holders in the

usual way. In some cases, the payment of Marketing Fees directly resulted in certain

Investment Companies facing significant financial difficulty and in turn substantially

impaired the value of the Underlying Investments.

Mr Cuming’s and Mr Jones’ involvement in the Scheme

2.13.
Between 20 January 2015 and 25 October 2016 GBFS advised at least 182 customers,

in respect of around £14 million of customers’ funds to transfer or switch their pensions

to the Beaufort SIPP. At least 167 of these customers were advised by Mr Jones or Mr

Cuming, with Mr Cuming advising no fewer than 99 of these customers.

2.14.
That advice from Mr Cuming and Mr Jones was driven by the Marketing Fees they

would receive and paid little or no regard to the personal circumstances of the

customers and the high-risk nature of nearly all the Underlying Investments included

within the Strategic Income Portfolio.

2.15.
In furtherance of the Scheme, Mr Cuming and Mr Jones regularly discussed with Mr

Sahota where the pension holders’ funds should be invested and the exact allocations.

Mr Cuming and Mr Jones worked closely with Mr Sahota to invest customers’ funds in

particular Underlying Investments.

2.16.
Further, the Authority concludes that Mr Cuming sought to conceal his involvement in

the Scheme and almost all of the financial benefit he derived from it, by receiving the

Marketing Fees directly into his personal bank account or through bank accounts held

by his connected companies, rather than via GBFS.

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2.17.
Mr Cuming was responsible for (amongst other things): (i) monitoring the compliance

of the advice provided to customers; (ii) ensuring that conflicts of interest were

managed appropriately and disclosed to customers; and (iii) conducting due diligence

and monitoring the Introducers and the discretionary fund manager (“DFM”). However,

as a result of his overriding interest and role in the Scheme, driven by his receipt of

Marketing Fees, Mr Cuming paid no real regard to the Underlying Investments and the

risks they posed before advising customers, the suitability of the advice given to GBFS’

customers, properly overseeing the Introducers and Mr Sahota as DFM, or to the clear

and acute conflict of interest in play.

2.18.
Mr Cuming failed to ensure that (a) GBFS’ customers were appropriately informed of

his and GBFS’ relationship with the Introducers and the DFM involved in the Scheme;

(b) GBFS’ customers were informed of the significant Marketing Fees he personally

received when he advised customers to transfer or switch their pensions to the

Beaufort SIPP and their pension funds were then invested in the Underlying

Investments included in the Strategic Income Portfolio; and (c) a suitable process was

put in place for managing the conflict of interest.

2.19.
As a result, GBFS’ customers did not know the true position and were unable to make

a fully informed decision about: (a) seeking advice from GBFS in relation to

transferring or switching their pension funds into a SIPP; (b) accepting the personal

recommendation they received from GBFS; and (c) using their existing pension funds

to purchase investments in the Strategic Income Portfolio. As a consequence, the

customers were exposed to a significant risk of loss and, in many cases, actual loss.

2.20.
On 18 September 2017, following intervention by the Authority, GBFS signed a

voluntary requirement which was imposed by the Authority on GBFS following an

application by GBFS under section 55L(5) of the Act (“VREQ”) to cease all regulated

activities relating to Pension Switches which involved the movement of funds from one

personal pension scheme to another where no safeguarded benefits are involved, or

Pension Transfers.

2.21.
On 31 October 2017, at the request of the Authority, GBFS signed a further VREQ to

cease all regulated activities. GBFS subsequently applied to cancel its Part 4A

permission on 30 November 2017 and this was effected on 1 December 2017.

2.22.
On 17 January 2018, GBFS entered into liquidation.

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Complaints to the Financial Ombudsman Service

2.23.
Some customers who had been advised by GBFS to transfer or switch their pensions

subsequently complained to the Financial Ombudsman Service. A number of these

customers complained that they had been wrongly advised to transfer their pensions

into a SIPP with BSL; that their funds had been wrongly put into high-risk investments

(namely, one or more of the Underlying Investments); and that they had been placed

into investments that were not in line with their attitude to risk.

FSCS claims

2.24.
As a result of GBFS going into liquidation on 17 January 2018, complaints made against

GBFS were subsequently referred to the FSCS. As at 18 March 2024, the FSCS had

paid compensation of approximately £4 million in respect of claims brought against

GBFS. These claims were made by pension holders that, following advice from GBFS,

had switched/transferred their pensions to the Beaufort SIPP and, as a result, their

pension funds were invested in one or more investments included in the Strategic

Income Portfolio.

Provision of information to the Authority

2.25.
Mr Cuming failed to deal with the Authority in an open and cooperative way during the

course of its investigation into his conduct in that he failed, without a reasonable

excuse:

(1)
to attend a compelled interview with the Authority; and

(2)
to respond to a compelled information requirement issued by the Authority.

Mr Cuming’s lack of integrity

2.26.
The Authority considers that throughout the Relevant Period Mr Cuming demonstrated

a lack of integrity and is not a fit and proper person because, while approved by the

Authority to perform the CF1 (Director), CF10 (Compliance Oversight), CF11 (Money

Laundering Officer) and CF30 (Customer) controlled functions he acted dishonestly in

that he:

(1)
participated in the Scheme, as a result of which GBFS’ customers whose pension

funds were invested in the Strategic Income Portfolio were exposed to a

significant risk of detriment and, in many cases, actual loss. Mr Cuming worked

closely with other individuals involved in the Scheme to ensure that customers’

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pension funds were invested in particular products so that significant Marketing

Fees could be generated and paid to himself and Mr Jones and to other

participants in the Scheme. Mr Cuming failed to disclose to customers that their

pension funds were being invested in such products and that he and Mr Jones

(as well as other participants in the Scheme) would, in return, be personally

receiving significant Marketing Fees, and the Authority concludes that he did not

do so because it would have exposed the Scheme; and

(2)
knowing what the Scheme involved and how it was structured, held himself out,

and caused GBFS to hold itself out, to customers as providing bespoke,

independent investment advice based on a comprehensive and fair analysis of

the whole market. Mr Cuming knew that the advice given to customers was not

independent but he did not pay proper regard to such matters. Instead, he

advised GBFS’ customers to transfer or switch their pensions to the DFM Service

at BSL in order that their pension funds would be invested specifically in the

Strategic Income Portfolio. Mr Cuming knew that holding himself out, and

causing GBFS to hold itself out, in this way was misleading to customers as it did

not reflect the reality of the part he and Mr Jones played in the Scheme or the

service GBFS purported to provide. In doing so, Mr Cuming knowingly exposed

customers to a significant risk of loss and made significant personal financial

gain at the expense of customers’ investable funds.

2.27.
Further, the Authority considers that Mr Cuming demonstrated a lack of integrity and

is not a fit and proper person, in that while approved by the Authority to perform the

same controlled functions, he advised, and directed GBFS to advise, customers to

transfer or switch their pensions to the Beaufort SIPP, knowing that their pension funds

would be invested in Underlying Investments included in the Strategic Income Portfolio

at BSL, notwithstanding his awareness that the Underlying Investments were nearly

all high-risk and of limited liquidity and therefore were unlikely to be suitable for many

of GBFS’ customers. As a consequence, the advice provided was unsuitable and was

driven by the significant financial benefit Mr Cuming would receive in return. In

providing such advice, and in directing GBFS to provide such advice, Mr Cuming failed

to pay any real regard to the suitability of the Underlying Investments and the risks

they posed, and thereby recklessly disregarded the interests of GBFS’ customers.

2.28.
The Authority considers Mr Cuming’s misconduct to be particularly serious in light of

matters, including the following:

(1)
customers were not made aware of the true nature of the advice they received,

including the fact of Mr Cuming’s involvement in the Scheme and his financial

interest in the transfer of pension funds into the Underlying Investments within

the Strategic Income Portfolio which created a clear and acute conflict of interest;

(2)
Mr Cuming used this conflict of interest to benefit personally from the transfer of

customers’ funds into these Underlying Investments in return for significant

financial benefit in the form of undisclosed Marketing Fees;

(3)
Mr Cuming knowingly preferred his personal financial gain over ensuring GBFS’

customers received adequate and bespoke advice tailored to their individual

needs and circumstances. Customers were therefore denied the opportunity to

make an informed decision on whether to use GBFS’ services and whether to

invest in the products recommended to them by Mr Cuming. The Authority

considers that had customers known the true state of affairs, it is likely they

would have ceased to use GBFS’ services;

(4)
customers were exposed to a significant risk of loss and, in many cases, actual

loss from the transfer of their pension funds into unsuitable investments. During

the Relevant Period, GBFS advised at least 182 customers, who had pensions

with a total value of approximately £14 million, to transfer or switch their

pensions to BSL’s DFM Service, where their funds were invested in the Strategic

Income Portfolio, with around £10 million invested in the Underlying

Investments.

2.29.
Accordingly, the Authority hereby:

(1)
imposes a financial penalty on Mr Cuming in the amount of £1,691,259 (including

interest) for his breach of Statement of Principle 1 during the Relevant Period;

and

(2)
makes an order prohibiting Mr Cuming from performing any function in relation

to any regulated activity carried on by an authorised person, exempt person or

exempt professional firm.

2.30.
However, Mr Cuming has agreed to pay £2,000 to the FSCS, to contribute towards the

redress paid and payable to customers of GBFS who have been disadvantaged. The

£2,000 that Mr Cuming has agreed to pay to the FSCS represents substantially all of

his assets available to meet a penalty or judgment. Provided Mr Cuming makes the

agreed payment to the FSCS, the Authority will not seek to enforce the financial

penalty against him.

2.31.
This action will advance the Authority’s operational objectives of securing an

appropriate degree of protection for consumers and protecting and enhancing the

integrity of the UK financial system.

3.
FAILINGS

3.1.
The regulatory provisions relevant to this Notice are referred to in the Annex.

3.2.
Statement of Principle 1 required Mr Cuming to act with integrity in carrying out his

controlled functions. A person will lack integrity where they act dishonestly or

recklessly. The Authority considers that during the Relevant Period, Mr Cuming failed

to act with integrity in carrying out his controlled functions at GBFS in breach of

Statement of Principle 1. This is evidenced by Mr Cuming’s conduct set out at

paragraphs 2.26 and 2.27.

Lack of fitness and propriety

3.3.
The Authority considers, based on the facts and matters set out in this Notice, that Mr

Cuming lacks integrity and is not a fit and proper person to perform any function in

relation to any regulated activity carried on by an authorised person, exempt person

or exempt professional firm.

4.
SANCTION

Financial penalty

4.1.
The Authority’s Handbook of rules and Guidance (“Handbook”) entitled Decision

Procedure and Penalties Manual (“DEPP”) at 6.5B sets out the details of the five-step

framework that applies in respect of financial penalties imposed on individuals in non-

market abuse cases.

Step 1: disgorgement

4.2.
Mr Cuming derived direct financial benefit from his breach of Statement of Principle 1

in the form of the Marketing Fees that he received arising from the Scheme, which

were generated from the advice given by GBFS to customers to transfer or switch their

pensions to the BSL DFM Service. The Authority has calculated that the amount of the

direct benefit Mr Cuming received in Marketing Fees during the Relevant Period totalled

£433,213.

4.3.
The Authority will ordinarily also charge interest on the benefit derived directly from

misconduct. The Authority considers it appropriate to apply simple interest at a rate of

0.25% on Mr Cuming’s benefit. Interest calculated on Mr Cuming’s benefit from receipt

to the date of this Notice amounts to £9,846.

4.4.
Step 1 is therefore £443,059 (the total of £433,213 plus interest of £9,846).

Step 2: the seriousness of the breach

4.5.
The period of Mr Cuming’s breach was from 16 January 2015 to 30 November 2017.

The Authority considers Mr Cuming’s relevant income for this period to be £717,397.

4.6.
In deciding on the percentage of the relevant income that forms the basis of the Step

2 figure, the Authority considers the seriousness of the breach and chooses a

percentage between 0% and 40%.

4.7.
In assessing the seriousness level, the Authority takes into account various factors

which reflect the nature and impact of the breach, and whether it was committed

deliberately or recklessly. The Authority considers that the following factors are

relevant.

Impact of the breach

4.8.
Mr Cuming gained significant financial benefit as a result of the advice he and Mr Jones

provided to customers to transfer or switch their pension to the Beaufort SIPP so that

their pension funds could be invested into the Underlying Investments included in the

Strategic Income Portfolio (DEPP 6.5B.2G(8)(a)).

4.9.
Mr Cuming’s breach of Statement of Principle 1 exposed customers who switched or

transferred their pension to the Beaufort SIPP to a significant risk of loss and, in many

cases, caused customers to suffer actual loss (DEPP 6.5B.2G(8)(c)).

Nature of the breach

4.10.
Mr Cuming breached Statement of Principle 1 repeatedly and over an extended period

of time (DEPP 6.5B.2G(9)(b)).

4.11.
Mr Cuming failed to act with integrity because he acted dishonestly and recklessly

throughout the Relevant Period (DEPP 6.5B.2G(9)(e)).

4.12.
Mr Cuming encouraged Mr Jones to participate in the Scheme in breach of Statement

of Principle 1 (DEPP 6.5B.2G(9)(h)).

4.13.
Mr Cuming was an experienced IFA with over 7 years of experience at the start of the

Relevant Period (DEPP 6.5B.2G(9)(j)).

4.14.
Mr Cuming, as the individual approved to perform the CF1 (Director) and CF10

(Compliance Oversight) controlled functions, held a senior position at GBFS (DEPP

6.5B.2G(9)(k) and (l)).

Deliberate misconduct

4.15.
Mr Cuming intentionally and repeatedly breached Statement of Principle 1 so that he

could receive significant Marketing Fees (DEPP 6.5B.2G(10)(a), (b) and (h)).

4.16.
Mr Cuming knew that he and Mr Jones on behalf of GBFS were misleading customers

and treating them unfairly by holding the firm out as providing bespoke, independent

investment advice based on a comprehensive and fair analysis of the whole market

when, as he knew, this did not reflect the reality of the service that GBFS would provide

given his and Mr Jones’ involvement in the Scheme (DEPP 6.5B.2G(10)(c)).

Reckless misconduct

4.17.
Mr Cuming acted recklessly in disregarding the interests of GBFS’ customers when

providing advice and directing GBFS to provide advice to them (DEPP 6.5B.2G(11)(a)).

Level of seriousness

4.18.
DEPP 6.5B.2G(12) lists factors likely to be considered ‘level 4 or 5 factors’. Of these,

the Authority considers the following factors to be relevant:

(1)
Mr Cuming’s breach of Statement of Principle 1 exposed a large number of

customers to a significant risk of loss and, in many cases, caused customers to

suffer actual loss (DEPP 6.5B.2G(12)(a));

(2)
Mr Cuming failed to act with integrity and was dishonest (DEPP 6.5B.2G(12)(d));

and

(3)
Mr Cuming’s breach of Statement of Principle 1 was committed deliberately and

recklessly (DEPP 6.5B.2G(12)(g)).

4.19.
DEPP 6.5B.2G(13) lists factors likely to be considered ‘level 1, 2 or 3 factors’. The

Authority considers that none of these factors apply.

4.20.
Taking all of these factors into account, the Authority considers the seriousness of the

breach to be level 5 and so the Step 2 figure is 40% of £717,397.

4.21.
Step 2 is therefore £286,958.

Step 3: mitigating and aggravating factors

4.22.
The Authority considers that the following factors aggravate the breach:

(1)
In 2013, prior to the Relevant Period, the Authority issued an alert on investing

pension monies into unregulated products through a SIPP, in which it specified a

model similar to the customer journey in this case. Following this, a second alert

was issued by the Authority in 2014 which stated that pension transfers to SIPPs

intended to hold non-mainstream propositions are unlikely to be suitable options

for the vast majority of retail customers (DEPP 6.5B.3G(2)(k)); and

(2)
The lack of cooperation shown by Mr Cuming during the Authority’s investigation,

in persistently failing without a reasonable excuse to attend a compelled

interview and to respond to a compelled information requirement. Mr Cuming’s

actions undermined the Authority’s ability to conduct its investigation in an

efficient and effective way and to obtain the information it reasonably needed

from him in relation to his own and GBFS’ conduct (DEPP 6.5B.3G(2)(b)).

4.23.
The Authority considers that there are no factors that mitigate the breach.

4.24.
Having taken into account these aggravating factors, the Authority considers that the

Step 2 figure should be increased by 45%.

4.25.
Step 3 is therefore £416,089.

Step 4: adjustment for deterrence

4.26.
The Authority considers the Step 3 figure of £416,089 and the absolute value of the

penalty is too small in relation to the breach to represent a sufficient deterrent to Mr

Cuming and others, and so has increased the penalty at Step 4 by a multiple of 3.

4.27.
The reasons for applying this multiplier are that Mr Cuming made a significant personal

financial gain from his misconduct, which was not included in the calculation of his

relevant income at Step 2, abused the senior position he held at GBFS to participate

in the Scheme, and exposed customers to the risk of, and actual, significant detriment.

4.28.
Step 4 is therefore £1,248,267.

Step 5: settlement discount

4.29.
No settlement discount applies.

4.30.
Step 5 is therefore £1,248,200 (rounded down to the nearest £100 in accordance with

the Authority’s usual practice).

4.31.
The Authority therefore imposes a financial penalty of £1,691,259 (namely £1,248,200

plus the Step 1 figure of £443,059 (including interest)) on Mr Cuming for breaching

Statement of Principle 1.

Prohibition order

4.32.
The Authority has had regard to the guidance in Chapter 9 of the Authority’s Handbook

entitled Enforcement Guide (“EG”) in considering whether to prohibit Mr Cuming.

4.33.
By virtue of the matters addressed in this Notice, in particular the finding at paragraph

3.3 above, and having regard to its statutory objectives, including protecting and

enhancing the integrity of the UK financial system and securing an appropriate degree

of protection for consumers, the Authority considers that it is appropriate and

proportionate in all the circumstances to make a prohibition order in respect of Mr

Cuming under section 56 of the Act in those terms.

5.
PROCEDURAL MATTERS

5.1.
This Notice is given to Mr Cuming in accordance with section 390 of the Act.

5.2.
The following statutory rights are important.

Decision maker

5.3.
The decision which gave rise to the obligation to give this Notice was made by the

Settlement Decision Makers.

Manner and time for payment

5.4.
The financial penalty is due and payable in full by Mr Cuming to the Authority no later

than 12 August 2024.

5.5.
However, the Authority has agreed not to enforce the financial penalty provided that

Mr Cuming pays £2,000 to the Authority, for the purpose of onward payment to the

FSCS, on or before 31 December 2026. The £2,000 that Mr Cuming has agreed to pay

represents substantially all of his available assets to meet a penalty or judgment.

5.6.
If Mr Cuming fails to pay the £2,000 on or before the day it is due to be paid (in

accordance with paragraph 5.5 above), and it remains outstanding after at least 14

days’ notice given by the Authority, then the Authority may immediately recover the

full amount of the financial penalty (less any amounts paid to the Authority) as a debt

owed by Mr Cuming and due to the Authority.

5.7.
Sections 391(4), 391(6) and 391(7) of the Act apply to the publication of information

about the matter to which this Notice relates. Under those provisions, the Authority

must publish such information about the matter to which this Notice relates as the

Authority considers appropriate. The information may be published in such manner as

the Authority considers appropriate. However, the Authority may not publish

information if such publication would, in the opinion of the Authority, be unfair to Mr

Jones or prejudicial to the interests of consumers or detrimental to the stability of the

UK financial system.

5.8.
The Authority intends to publish such information about the matter to which this Notice

relates as it considers appropriate.

Authority contact

5.9.
For more information concerning this matter generally, contact Natalie Rivett at the

Authority (direct line: 020 7066 4166 / email: Natalie.Rivett@fca.org.uk).

Financial Conduct Authority, Enforcement and Market Oversight Division

ANNEX

1.
RELEVANT STATUTORY PROVISIONS

1.1.
The Authority’s statutory objectives, set out in section 1B(3) of the Act, include the

operational objectives of securing an appropriate degree of protection for consumers

and protecting and enhancing the integrity of the UK financial system.

1.2.
Section 66 of the Act provides that the Authority may take action against a person if

it appears to the Authority that he is guilty of misconduct and the Authority is satisfied

that it is appropriate in all the circumstances to take action against him. A person is

guilty of misconduct if, while an approved person, he has failed to comply with a

Statement of Principle issued under section 64 of the Act, or has been knowingly

concerned in a contravention by a relevant authorised person of a relevant requirement

imposed on that authorised person.

1.3.
Section 56 of the Act provides that the Authority may make an order prohibiting an

individual from performing a specified function, any function falling within a specified

description or any function, if it appears to the Authority that that individual is not a

fit and proper person to perform functions in relation to a regulated activity carried on

by an authorised person, exempt person or a person to whom, as a result of Part 20,

the general prohibition does not apply in relation to that activity. Such an order may

relate to a specified regulated activity, any regulated activity falling within a specified

description, or all regulated actives.

2.
RELEVANT REGULATORY PROVISIONS

Statements of Principle and Code of Practice for Approved Persons

2.1.
The Authority’s Statements of Principle and Code of Practice for Approved Persons

have been issued under section 64 of the Act.

2.2.
During the Relevant Period, Statement of Principle 1 stated:

‘An approved person must act with integrity in carrying out his accountable functions.’

2.3.
‘Accountable functions’ include controlled functions and any other functions performed

by an approved person in relation to the carrying on of a regulated activity by the

authorised person to which the approval relates.

2.4.
The Code of Practice for Approved Persons sets out descriptions of conduct which, in

the opinion of the Authority, does not comply with a Statement of Principle. It also

sets out factors which, in the Authority’s opinion, are to be taken into account in

determining whether an approved person’s conduct complies with a Statement of

Principle.

The Fit and Proper Test for Approved Persons

2.5.
The part of the Authority’s Handbook entitled “The Fit and Proper Test for Approved

Persons” (“FIT”) sets out the criteria that the Authority will consider when assessing

the fitness and propriety of a candidate for a controlled function. FIT is also relevant

in assessing the continuing fitness and propriety of an approved person.

2.6.
FIT 1.3.1G states that the Authority will have regard to a number of factors when

assessing the fitness and propriety of a person. The most important considerations

will be the person’s honesty, integrity and reputation, competence and capability and

financial soundness.

The Authority’s policy for exercising its power to make a prohibition order

2.7.
The Authority’s policy in relation to prohibition orders is set out in Chapter 9 of the EG.

2.8.
EG 9.1 states that the Authority may exercise this power where it considers that, to

achieve any of its regulatory objectives, it is appropriate either to prevent an individual

from performing any functions in relation to regulated activities or to restrict the

functions which he may perform.

DEPP

2.9.
Chapter 6 of DEPP, which forms part of the Authority’s Handbook, sets out the

Authority’s statement of policy with respect to the imposition and amount of financial

penalties under the Act.


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