Final Notice
FINAL NOTICE
Address
1 The Spinney
121 Main Road
Danbury
Chelmsford
Essex, CM3 4DL
ACTION
1.
For the reasons given in this notice, and pursuant to section 66 of the Act, the
Authority hereby publishes a statement of misconduct by Mr Martin, for breaches of
2.
The public censure will be issued on 23 October 2015 and will take the form of this
Final Notice, which will be published on the Authority’s website.
SUMMARY OF REASONS
3.
During the relevant period Mr Martin held the CF1 (Director) and the CF11 (Money
Laundering Reporting) controlled functions at Quick Purchase. He was the only
controlled function holder during the relevant period.
4.
In the relevant period Quick Purchase entered into 14 regulated sale and rent back
(“SRB”) transactions, with customers. An SRB transaction must be both appropriate
and affordable to be suitable for the customer but Quick Purchase permitted its
customers to enter into SRB transactions without having reasonable grounds to be
satisfied that the transaction was both affordable and appropriate for those
customers.
5.
Of the 14 SRB transactions, 11 were either inappropriate, unaffordable or both. The
Authority regards these inappropriate and/or unaffordable sales as serious because
they led to significant consumer detriment causing customers potentially to forgo
between 29-38% of the equity in their homes.
6.
Mr Martin breached Statement of Principle 6, by failing to exercise due skill, care
and diligence in managing the business of Quick Purchase, for which he was
responsible in his controlled function, in particular by not setting up appropriate
systems and controls at Quick Purchase in order to ensure that:
i. appropriate customer information was gathered by its non-approved sales
adviser, prior to customers being permitted to enter into an SRB
agreement, to ensure its appropriateness;
ii. valuations of all properties were carried out independently by a surveyor
who owed a duty of care to the customer; and
iii. record keeping was adequate to demonstrate compliance with the
requirements of MCOB, including why it was appropriate and affordable for
customers to enter into the SRB contract.
7.
The Authority notes that Quick Purchase took the following actions to address
customer detriment and the Authority’s concerns in relation to the SRB
transactions. Quick Purchase;
a. agreed to pay appropriate redress to those customers whose SRB
transactions were unsuitable;
b. has not increased the rent for its SRB customers throughout the current
five-year terms (notwithstanding annual rent rises being permitted under
each SRB tenancy agreement); and
c. agreed to offer all its existing SRB tenants new shorthold tenancies for a
three year term, at an affordable market rent fixed for those three years
(notwithstanding the fact that there is no requirement that an assured
shorthold tenancy should offer a minimum term or be at a rent which
includes the element of affordability). These tenancies are to commence
on the expiration of their current SRB contracts.
8.
The action to publish a statement of Mr Martin’s misconduct supports the
Authority’s consumer protection objective of securing an appropriate degree of
protection for consumers.
DEFINITIONS
9.
The definitions below are used in this Final Notice.
“the Act” means the Financial Services and Markets Act 2000;
“the Authority” means the body corporate previously known as the Financial
Services Authority and renamed on 1 April 2013 as the Financial Conduct
Authority;
“the customers” means the 14 individuals who commenced and completed their
sale and rent back transaction with Quick Purchase during the relevant period (see
table at Annex A);
“the 14 customer files” means the customer files relating to the customers’ SRB
transactions;
“MCOB” means the Mortgages and Home Finance: Conduct of Business
sourcebook, part of the Authority’s Handbook;
“Part IV Permission” means permission given to Quick Purchase under Part IV of
the Act, which was in force until 31 March 2013, and “Part 4A permission” means
permission given to Quick Purchase under Part 4A of the Act from 1 April 2013;
“Quick Purchase” means Quick Purchase Limited trading as Rent My House Back;
“the relevant period” means 14 July 2010 to 17 May 2011;
“SRB” means regulated sale and rent back;
“Statement of Principle” means the Statements of Principle and Code of Practice for
Approved Persons, part of the Authority’s Handbook; and
“the Tribunal” means the Upper Tribunal (Tax and Chancery Chamber).
FACTS AND MATTERS
Background and SRB regulatory introduction
10.
Quick Purchase is an authorised SRB provider. It describes itself as a specialist SRB
buying company, enabling homeowners to stay in their house and rent it back. It
became authorised on 14 July 2010 to carry out SRB activities.
11.
Mr Martin is approved to perform the CF1 (Director) function and is also approved
to perform the CF11 (Money Laundering Reporting) function. There are no other
approved persons at Quick Purchase. Mr Martin is also the sole shareholder. He
runs Quick Purchase’s business on a day-to-day basis. Quick Purchase has a non-
approved internal compliance officer, who regularly reports to Mr Martin. Mr Martin
confirmed that during the relevant period he decided whether to purchase a
particular property, by ensuring that the transaction was appropriate and affordable
for the relevant customer. Mr Martin further confirmed that he is solely responsible
for his business which he manages and operates.
12.
Quick Purchase entered into 14 SRB agreements with customers during the
relevant period.
13.
SRB transactions involve individuals selling their home at a discount in return for
the right to remain in their property as a tenant for a set period, typically on an
assured shorthold tenancy. The individuals tend to be facing re-possession or other
serious financial difficulties. The principal reason for most customers to enter into
an SRB scheme is to allow them to remain living in their houses for an agreed
period of time, which they would have been unable to do if they were to sell their
properties in the open market. Examples of other reasons given by customers
wishing to enter into SRB transactions include paying off mortgages and other
debts, reducing monthly outgoings, leaving the property ladder, releasing money to
spend on holidays and family members, and not having to deal with the expenses
and stress (such as the responsibility for repairs) relating to home ownership.
14.
SRB became a regulated activity on 30 June 2010. Before this date a transitional
regime, which contained less onerous requirements on firms, was in place. All firms
were required to apply a single sales standard across all SRB transactions based on
the assessment of affordability and appropriateness for each sale. This means it is
not permissible for a firm to transact an SRB agreement unless it has reasonable
grounds to be satisfied that that an SRB agreement is both affordable and
appropriate for the customer.
15.
Quick Purchase operated in the transitionally regulated, and before this non-
regulated, SRB market before becoming authorised on 14 July 2010.
16.
In March 2011 the Authority undertook a thematic review of the SRB market. The
review identified widespread poor practice among SRB firms. The main conclusion
was that the majority of the SRB sales, from these SRB firms, were either
unaffordable or inappropriate, meaning that consumers had a detrimental outcome
or were likely to in the future. Common failings from this review included those
relating to correctly assessing appropriateness and affordability, disclosure, record
keeping and sales processes.
17.
On 5 and 6 May 2011, the Authority attended the offices of Quick Purchase and
identified areas of concern. Quick Purchase agreed, on 17 May 2011, to vary its
Part IV permission (now its Part 4A permission) to remove its permission to enter
into sales of any new regulated SRB contracts or agreements. Quick Purchase
remained able to assist in the administration and performance of any existing
regulated SRB agreement. Quick Purchase disputed the initial assessment in some,
but not all, of these cases in respect of both "affordability" and "appropriateness".
In some cases Quick Purchase reduced the rent that these customers were paying.
18.
On 15 November 2011, the Authority required Quick Purchase to instruct a skilled
person to produce a report in relation to its assessment of the "affordability" of the
14 SRB transactions. The skilled person produced its report on 7 February 2013.
The skilled person interviewed some of the customers and obtained further
information on their financial circumstances. For the customers who did not wish to
participate, the skilled person relied upon national statistical data and extrapolated
results from the participating customers.
19.
The Authority has also undertaken its own review of the customer files in relation
to both affordability and appropriateness and, where possible, interviewed the
customers.
General Concerns
Customer information
20.
Quick Purchase's procedures in gathering information on the customers' personal
and financial circumstances increased the risk that the customers entered into the
transactions without their personal circumstances being assessed adequately for
the purpose of ensuring that the transactions were both affordable and appropriate.
21.
Quick Purchase gathered this information during their initial telephone calls with
the customers and generated a fact find document based on this discussion. The
customers were subsequently asked to sign the fact find document and verify the
information at a face to face meeting with Quick Purchase. In seven cases this
meeting took place after Quick Purchase had assessed affordability and
appropriateness of the SRB transactions for the customers. This gave rise to an
increased risk that Quick Purchase did not have accurate information on the
customers' personal and financial circumstances in order to assess the affordability
and appropriateness of the transactions.
22.
The skilled person found that Quick Purchase failed to gather sufficient information
on the customers’ financial circumstances to demonstrate affordability. This
included Quick Purchase’s failure to obtain verifiable evidence on the customers’
income, expenses and financial commitments and to ensure that the customers’
circumstances were suitably reflected in the calculation of their net monthly
expenditure.
23.
The fact finding process to assess the appropriateness of the transactions lacked
sufficient rigour. The fact find document was completed by a sales adviser not
involved in the assessment of the suitability of the transactions. It did not contain
adequate information on the customer's needs, objectives and circumstances to
determine and demonstrate the appropriateness of the SRB transaction.
24.
Quick Purchase’s procedure on gathering customer information was a "tick box"
task and inadequate. It should have been a genuine assessment of the customers'
personal circumstances to assist with Quick Purchase’s determination of the
appropriateness of the SRB transaction.
Valuations
25.
MCOB 2.6A.12A R states that a firm must ensure that any valuation for the
purposes of an SRB agreement is carried out by a valuer who owes a duty of care
to the customer in valuing the property. This provision ensures that the customer
has an effective remedy against the valuer if subsequently required. Although
Quick Purchase included in its customer files a joint instruction letter in the form
set out in MCOB 2 Annex 1G with a view to establishing that the valuer owed a
duty of care to the customer, most of these letters were undated and were not
countersigned by the customers. In five cases the valuer instructed to value each
property, for the purpose of identifying each property's market value, was only
acting for Quick Purchase and was not subject to a joint instruction by Quick
Purchase and the customer.
26.
Quick Purchase’s failure to comply with this valuation requirement has meant that
5 of the 14 customers may not have been owed a duty of care by the valuer. The
Authority considers this to be serious, as Quick Purchase did not treat its customers
fairly in this regard.
Record keeping
27.
MCOB 4.11.8R states that a firm must make and retain a record of the customer
information that has been provided to it, and which explains why the firm
concluded that the customer could afford, and why it was appropriate for him, to
enter into the proposed SRB agreement.
28.
The skilled person found that in all cases Quick Purchase had failed to demonstrate
the affordability of the transactions for the customers.
29.
The record keeping in these fact finds contained insufficient information to
demonstrate that Quick Purchase had considered and rejected other options (for
example, selling on the open market, re-mortgaging, equity release) that may have
been suitable for the customers. Quick Purchase did not demonstrate that it had
explored these options sufficiently and provided inadequate explanations as to why
Quick Purchase was satisfied that it was appropriate for the customers to enter into
the proposed SRB agreement, rather than availing themselves of other options. For
example, in one case (Customer A), obvious alternatives for a customer with her
needs, objectives and circumstances were to sell the property or to apply for a
mortgage rescue scheme (a government scheme offered to mortgagors in serious
difficulties who are unable to make their mortgage repayments and in danger of
becoming homeless if the house is repossessed). Quick Purchase’s comments in the
fact find, consisting of “not an option as she did not want to move out as she has
lived there for some time,” and “client had looked at this but felt that this was not
an option for her” were insufficient to explain why Quick Purchase considered it was
more appropriate for this customer to enter into the proposed SRB agreement than
avail herself of the other options.
30.
Mr Martin, acting in a position of significant influence and as the person solely
responsible for Quick Purchase’s procedures, was directly responsible for these
breaches.
SRB transactions
31.
At all material times Quick Purchase actively employed the services of external
advisers in an effort to meet its regulatory obligations. These steps do not however
remove Mr Martin’s direct responsibility for the regulatory failings which occurred.
The paragraphs below set out the Authority’s findings in relation to 3 of the 11
cases where the SRB transactions were not affordable and/or appropriate to the
customers’ needs, objectives and circumstances. Mr Martin did not ensure that
these cases were assessed appropriately by Quick Purchase and the customers
were treated fairly.
Mrs A
32.
Mrs A was a 70 year old widow with no private income. She was in financial
difficulties with her mortgage and debt repayments and had incurred arrears
amounting to around £6,000. An order for possession was obtained by the lenders,
the order being suspended on condition of payment of the arrears. Mrs A, whose
home was valued at £187,500, gave up £56,250 of equity in the SRB transaction.
After repaying her outstanding mortgage she paid the balance of her sale proceeds
(£59,400) as advance rent for the full five year term to Quick Purchase. No
allowance for accelerated receipt was provided by Quick Purchase to Mrs A for this
payment.
33.
Quick Purchase recorded a maximum affordable monthly rent in the fact find of
£344.47 for Mrs A. The tenancy agreement stipulated the SRB rent as £900 per
month for this transaction. Quick Purchase’s own assessment indicated that the
SRB rent was not affordable.
34.
Quick Purchase assessed this transaction as affordable for Mrs A by making
arrangements for her to pay the rent for the full five year term upfront from her
sale proceeds. This amounted to £59,400. This was despite MCOB 4.11.4E(3) which
states that, in assessing affordability, a firm must not rely to a material extent on
the capital of, or income from, any lump sum the customer receives that represents
the net sale proceeds of the property.
35.
Mrs A paid £59,400 to Quick Purchase as an advance payment of rent for the full
five year term. Notwithstanding MCOB 4.11.4E(3), Quick Purchase should have at
least provided Mrs A with a discount to take into account the benefit to it of
accelerated receipt. As a result, Mrs A was left with no surplus cash after the sale of
her property to Quick Purchase.
36.
The skilled person re-assessed the customer’s income and expenditure after the
customer contact exercise and calculated her net income as being in deficit. Given
Mrs A’s financial difficulties at that time, and the SRB rent being significantly higher
than her original mortgage and debt repayments each month (which were around
£500), the skilled person assessed this case to be unaffordable at any level of rent.
Appropriateness
37.
Quick Purchase recorded in the fact find that selling on the open market and
vacating the property was not a viable option for Mrs A as she did not want to
move out. The fact find referred to other options including equity release and
mortgage rescue schemes, which were dismissed.
38.
Mrs A’s needs and objectives were to be able to repay her debts and avoid re-
possession proceedings. She was retired with a pension income of approximately
£1,000 per month, all of which was expended on basic living expenses and
mortgage repayments. Quick Purchase should have looked into mortgage rescue
schemes as an option for Mrs A. Given her circumstances, she could potentially
have qualified for such schemes that would have enabled her to obtain almost 90%
of the value of her house (as opposed to the 70% she obtained through Quick
Purchase) and at the same time rent her home at a discounted rate. The reason
shown for not exploring this scheme as an option in the fact find, i.e. “client had
looked at this but felt that this was not an option for her”, was inadequate.
39.
Mrs A’s needs and objectives may also have been better met by selling her house
on the open market. Mrs A was widowed with no dependants; her circumstances
suggested that it was likely that she would be able to move to less expensive
accommodation. Quick Purchase failed to demonstrate that it sufficiently explored
this option with Mrs A.
40.
There was insufficient analysis by Quick Purchase in assessing whether Mrs A’s
needs, objectives and circumstances were appropriately met by this transaction.
Quick Purchase executed the transaction without adequate regard to whether this
was in her best interests and without fully exploring other options.
41.
Quick Purchase did not have reasonable grounds to be satisfied that the proposed
SRB agreement was appropriate to the needs, objectives and circumstances of Mrs
A. The benefits of the transaction were clearly outweighed by the adverse effects.
The transaction was both unaffordable and not appropriate.
Ms B
42.
Ms B was 35 years of age, a widow, had one dependent child and two children who
had left home. She had no arrears on her mortgage. Her aim was to obtain a cash
sum to purchase a caravan and to leave the property market. Ms B gave up
£25,000 of equity in her home in the SRB transaction. The SRB offer was sufficient
to pay her debts and to leave her with a surplus of £18,000 - 20,000. Her monthly
rent was £350 for the first year, with the potential to increase to £480 in year five.
43.
Quick Purchase assessed Ms B’s net monthly income and total average monthly
expenditure and considered that the transaction was affordable for her. After re-
assessing Ms B’s income and expenditure the skilled person agreed that the
transaction was affordable.
Appropriateness
44.
Quick Purchase recorded in the fact find that selling in the open market and
vacating possession was not considered as Ms B had lived in the property for a
number of years and did not want to sell. But the main reason given on the fact
find for entering into the transaction was that Ms B wanted to leave the “property
ladder”. If this was the primary reason for entering into an SRB transaction, selling
on the open market and moving into rented accommodation should have been
actively discussed between Quick Purchase and Ms B.
45.
Ms B’s other objective was to release money to buy a caravan. Quick Purchase
failed to demonstrate active discussion on the merits of this proposed course of
action for Ms B.
46.
Ms B was not facing any financial difficulty and her financial circumstances were
manageable. There were three obvious alternative options which should have been
actively considered, discussed and evidenced: doing nothing, taking a further loan
(secured or unsecured) for her prospective purchase of the caravan, or selling the
property and moving into rented accommodation. Ms B had two main objectives
(obtaining money for a caravan and coming out of the property market), either or
both of which could have been achieved without the loss of £25,000 equity in the
property.
47.
There was insufficient analysis by Quick Purchase in assessing whether Ms B’s
needs, objectives and circumstances were appropriately met by this transaction.
Quick Purchase executed the transaction without adequate regard to whether this
was in her best interests.
48.
Although Ms B’s transaction was affordable, it was not appropriate to the needs,
objectives and circumstances of Ms B, and Quick Purchase did not have reasonable
grounds to be satisfied that it was.
49.
Mr C was 70 years of age and a widower with no financial dependants. Mr C’s
property was mortgage free and he was not in financial difficulties. His aim was to
obtain £14,000 to give to his daughter for her to invest in her business. Mr C gave
up £22,750 of equity in his home. His monthly rent was set at £350 for the first
year, with the potential to increase to £420 in year five.
50.
Quick Purchase assessed Mr C’s net monthly income and total average monthly
expenditure and recorded a maximum affordable monthly rent in the fact find for
Mr C of £1,248.90. This assessment indicated that the SRB rent was affordable for
him. After re-assessing Mr C’s income and expenditure the skilled person agreed
that the transaction was affordable.
Appropriateness
51.
Quick Purchase failed to explore sufficiently the alternative options for Mr C to
assist his daughter financially. The obvious options were whether Mr C could have
obtained a loan (something he had previously done) to raise the £14,000 or acted
as guarantor to a loan taken out by his daughter. Instead, the fact find recorded
that an unsecured loan was discounted as the customer was looking to release
money and keep his outgoings down. This suggests that Quick Purchase did little
more than mention this option in passing. An SRB transaction should not be
considered as a method of raising convenient and immediate finance.
52.
There was insufficient analysis by Quick Purchase in assessing whether Mr C’s
needs, objectives and circumstances were appropriately met by this transaction.
Quick Purchase executed the transaction without adequate regard to whether this
was in Mr C’s best interests and without fully exploring other options.
53.
Although Mr C's transaction was affordable, it was not appropriate to the needs,
objectives and circumstances of Mr C, and Quick Purchase did not have reasonable
grounds to be satisfied that it was.
FAILINGS
54.
The regulatory provisions relevant to this Final Notice are referred to in Annex B.
55.
By reason of the facts and matters referred to above, Mr Martin has failed to
comply with Statement of Principle 6, as an approved person performing a
significant influence function, to exercise due skill, care and diligence in managing
the business of the firm for which he is responsible in his controlled function. In
particular, Mr Martin failed to set up appropriate systems and controls at Quick
Purchase in order to ensure that:
i. appropriate customer information was gathered by its non-approved
sales adviser, prior to customers being permitted to enter into an SRB
agreement, to ensure its appropriateness;
ii. valuations of all of the properties were carried out independently by a
surveyor who owed a duty of care to the customer; and
iii. record keeping was adequate to demonstrate compliance with the
requirements of MCOB , including the appropriateness and affordability
for the customers of entering into the SRB contract.
SANCTION
56.
The Authority is publishing a statement of Mr Martin’s misconduct pursuant to
section 66(3)(b) of the Act for breaching Statement of Principle 6. As the
misconduct took place after 6 March 2010, the Authority’s new penalty regime
applies. The Authority has also had regard to the provisions of Chapter 7 of the
Enforcement Guide.
57.
The Authority’s policy for imposing a financial penalty or publishing a statement of
misconduct is set out in Chapter 6 of DEPP. DEPP 6.4.2G notes that the criteria for
determining whether it is appropriate to issue a public censure rather than impose
a financial penalty include those factors that the Authority will consider in
determining the amount set out in DEPP 6.5A to DEPP 6.5D. The Authority
considers the following factors to be particularly relevant in this case.
58. When determining the level of penalty, the Authority has regard to the principal
purpose for which it imposes sanctions, namely to promote high standards of
regulatory conduct by deterring persons who have committed breaches from
committing further breaches and helping to deter other persons from committing
similar breaches, as well as demonstrating generally the benefits of compliant
business.
The extent to which the breach was deliberate or reckless
59.
The Authority does not consider that Mr Martin’s failure to discharge his
responsibilities as a CF1 director was deliberate or reckless.
Other action taken by the Authority
60.
In determining the appropriate sanction, the Authority has taken into account
sanctions imposed by the Authority in other cases.
Previous disciplinary and compliance history
61.
Mr Martin has not been the subject of previous disciplinary action by the Authority.
PROCEDURAL MATTERS
Decision maker
62.
The decision which gave rise to the obligation to give this Notice was made by the
Settlement Decision Makers.
63.
This Final Notice is given under, and in accordance with, section 390 of the Act.
64.
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 you or prejudicial to the interests of consumers or
detrimental to the stability of the UK financial system.
65.
The Authority intends to publish such information about the matter to which this
Final Notice relates as it considers appropriate.
Authority Contacts
66.
For more information concerning this matter generally, contact Paul Howick (direct
line: 020 7066 7954 or email paul.howick@fca.org.uk) at the Enforcement and
Market Oversight Division of the Authority.
Financial Conduct Authority, Enforcement and Market Oversight Division
Valuation and
(Purchase
Price)
A
£187,500
(£131,250)
£56,250
Not appropriate
Unaffordable
No
B
£70,000
(£45,000)
£25,000
Not appropriate
Affordable
No
C
£65,000
(£42,250)
£22,750
Not appropriate
Affordable
No
D
£175,000
(£110,000)
£65,000
Appropriate
Unaffordable
No
E
£125,000
(£88,000)
£37,000
Appropriate
Affordable
Yes
F
£110,000
(£75,000)
£35,000
Not appropriate
Affordable
No
G
£175,000
(£122,000)
£53,000
Not appropriate
Affordable
No
H
£70,000
(£46,000)
£24,000
Appropriate
Affordable
Yes
I
£103,000
(£66,950)
£36,050
Not appropriate
Affordable
No
J
£105,000
(£65,000)
£40,000
Not appropriate
Affordable
No
K
£110,000
(£72,000)
£38,000
Not appropriate
Unaffordable
No
L
£125,000
(£87,500)
£37,500
Not appropriate
Affordable
No
M
£125,000
(£83,000)
£42,000
Appropriate
Affordable
Yes
N
£80,000
(£56,653.48)
£23,347.52
Appropriate
Unaffordable
No
ANNEX B
STATUTORY PROVISIONS, REGULATORY GUIDANCE AND POLICY
Statutory provisions
1.
Section 1A(1) of the Act states that the body corporate previously known as the
Financial Services Authority is re-named as the Financial Conduct Authority.
2.
The FCA’s operational objectives established in section 1B of the Act include
protecting and enhancing the integrity of the UK financial system and the
protection of consumers. The consumer protection objective is securing an
appropriate degree of protection for consumers.
3.
Section 66(1) of the Act provides that the FCA may take action against a person if
it appears to the FCA that he is guilty of misconduct and it is satisfied that it is
appropriate in all the circumstances to take action against him.
4.
Section 66(3)(b) provides that the FCA may publish a statement of a person’s
misconduct.
Handbook provisions
5.
In exercising its power to impose a financial penalty or issue a public censure, the
FCA must have regard to relevant provisions in the FCA Handbook of rules and
guidance. The main provisions relevant to the action specified above are set out
below.
Statements of Principle and the Code of Practice for Approved Persons
6.
The Statements of Principle and Code of Practice for Approved Persons set out the
Statements of Principle as they relate to approved persons and descriptions of
conduct which, in the opinion of the Authority, do not comply with a Statement of
Principle. They further describe factors which, in the opinion of the Authority, are to
be taken into account in determining whether or not an approved person's conduct
complies with a Statement of Principle.
7.
The Statement of Principle relevant to this matter is Statement of Principle 6, which
provides that an approved person performing a significant influence function must
exercise due skill, care and diligence in managing the business of the firm for which
he is responsible in his controlled function.
MCOB
8.
MCOB 4.11 sets out the advising and selling standards for SRB transactions.
9.
MCOB 4.11.3R provides that a firm must not permit a potential SRB seller to
become contractually committed to enter into an SRB agreement unless it has
reasonable grounds to be satisfied that the customer can afford the payments he
will be liable to make under the agreement and that the proposed SRB agreement
is appropriate to the needs, objectives and circumstances of the customer.
10.
MCOB 4.11.4E refers to information which firms are required to consider when
assessing whether or not a transaction is affordable.
11.
MCOB 4.11.4E(1)(b) provides that firms should obtain adequate information from
the customer to establish his income and expenditure calculated on a monthly
basis, and any other resources that he has available, and verify the same using
evidence provided by the customer.
12.
MCOB 4.11.4E(1)(d) provides that in assessing affordability firms should take into
account the customer's entitlement to means-tested benefits and housing benefits.
13.
MCOB 4.11.4E(3) provides that in assessing affordability firms must not rely to a
material extent on the capital of, or income from, any lump sum the customer
receives which represents the net sale proceeds of the property.
14.
MCOB 4.11.5E(1) provides that in assessing whether a particular SRB agreement is
appropriate to the needs, objectives and circumstances of a potential SRB
agreement seller, a firm should have due regard to the following:
a)
whether the benefits to the customer in entering into the proposed SRB
agreement outweigh any adverse effects it may have for him, including on his
entitlement to means-tested benefits and housing benefits; and
b)
the feasibility of the customer raising funds by alternative methods other than
by a sale of his property.
15.
MCOB 4.11.8R (1) provides that a firm must make and retain a record of the
customer information that has been provided to it, including that relating to:
a)
the customer's income, expenditure and other resources that it has obtained
from him for the purpose of assessing affordability, together with the stress
testing of the rental payments;
b)
the customer's needs, objectives and individual circumstances that it has
obtained from him for the purpose of assessing appropriateness; and
c)
the customer's entitlement to means-tested benefits and housing benefits,
including any evidence provided by the customer, that it has obtained from
him for the affordability and appropriateness assessment.
and which explains why the firm concluded that the customer could afford, and why
it was appropriate for him, to enter into the proposed regulated sale and rent back
agreement.
16.
MCOB 4.11.10G confirms that an SRB agreement provider is expected to carry out
its own assessments of affordability and appropriateness in relation to an SRB
agreement unless it is reasonable for it to rely on another firm having done so.
17.
MCOB 2.6A.12A R provides that a firm must ensure that any valuation for the
purposes of an SRB agreement is carried out by a valuer who owes a duty of care
to the customer in valuing the property.
18.
MCOB 5.9.1R(1) states that a firm must, as soon as a customer expresses an
interest in becoming an SRB agreement seller, ensure that the disclosures and
warnings set out in MCOB 5.9.1R(1A) are made to the customer, both orally and
confirmed in writing, and he is given an adequate opportunity to consider them.
19.
MCOB 5.9.1R(1A) provides that the disclosures and warnings referred to in MCOB
5.9.1R(1) include, amongst others, that the SRB agreement seller should in his
own best interests independently seek whatever information he can on the market
value of his property, as explained in the FSA consumer factsheet provided to the
customer, before proceeding with the proposed transaction and how and from
where information on its value may be available.