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FINAL NOTICE

IRN:
KPW01016

1.
ACTION

1.1. For the reasons given in this Notice, the Authority hereby:

i) censures Mr Wells publicly for breaches of Statements of

Principle 6 and 7 in his capacity as an approved person at

MPAS during the Relevant Period; and

ii) makes the Prohibition Order prohibiting Mr Wells from

performing any significant influence function in relation to

any regulated activity carried on by any authorised person,

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exempt person or exempt professional firm because he is

not a fit and proper person for such a role in terms of his

competence and capability. This order takes effect from 18

April 2013.

1.2. Mr Wells’ misconduct merits a financial penalty. Were it not

for Mr Wells’ current financial difficulties and verifiable

evidence that the imposition of a penalty would result in

serious financial hardship, the Authority would have imposed

a financial penalty of £58,500. In that event, Mr Wells would

have qualified for a 20% discount (Stage 2) in accordance

with the Authority’s executive settlement procedure, reducing

the penalty to £46,800.

1.3. The public censure will be issued on 18 April 2013 and will

take the form of this Final Notice, which will be published on

the Authority’s website.

2.
SUMMARY OF REASONS

2.1. On the basis of the facts and matters described below, the

Authority sanctions Mr Wells for breaches of Statements of

Principle 6 and 7 in performing the significant influence

controlled function of CF1 (Director) at MPAS during the

Relevant Period.

2.2. In summary, the Authority considers that Mr Wells failed to

exercise due skill, care and diligence in managing the

business of the firm for which he was responsible in his

controlled function, in breach of Statement of Principle 6, in

that he:

a)
failed to take reasonable steps to inform himself about

the regulatory requirements to which MPAS was subject

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as a SIPP scheme operator and to which he was subject

as an approved person;

b)
expanded the business of MPAS without adequately

identifying, monitoring or mitigating the risks associated

with that expansion; and

c)
acted without due regard to compliance issues and

permitted MPAS staff to do similarly.

2.3. The Authority also considers that Mr Wells failed to take

reasonable steps to ensure that the business of MPAS, for

which he was responsible in his controlled function, complied

with the relevant requirements and standards of the

regulatory system, in breach of Statement of Principle 7, by

failing to:

a)
take steps to ensure that MPAS complied with its

regulatory requirements under the CASS rules; and

b)
take steps to ensure that MPAS had adequate systems

and controls in place to enable it to comply with its

regulatory requirements, in particular, the due diligence

it conducted on third parties and SIPP assets, its record

keeping of SIPP assets and its use of management

information.

2.4. The Authority considers that the nature and seriousness of

the breaches outlined above would have warranted the

imposition of a financial penalty, but for evidence that

imposing such a penalty would have caused Mr Wells serious

financial hardship. By failing to ensure that MPAS properly

assessed
the
risks
associated
with
accepting
esoteric

investments into its schemes, Mr Wells potentially exposed

scheme members to an increased risk of loss. Mr Wells also

potentially exposed scheme members to the risk of loss of

cash funds held on their behalf by his failure to ensure that

MPAS complied with the CASS rules. The Authority therefore

censures Mr Wells publicly instead.

2.5. By virtue of the breaches outlined above, the Authority also

considers that Mr Wells has failed to meet minimum

regulatory standards in terms of competence and capability

and that he is not fit and proper to perform significant

influence functions at any authorised person, exempt person

or exempt professional firm. Accordingly, the Authority

imposes the Prohibition Order on him.

2.6. This action supports the Authority’s consumer protection

operational objective.

3.
DEFINITIONS

3.1. The definitions below are used in this Final Notice:

the “Act” means the Financial Services and Markets Act 2000;

“APER”
or
“the
Statements
of
Principle”
means
the

Statements of Principle and Code of Conduct for Approved

Persons set out in the Authority’s Handbook;

The “Authority” means the body corporate previously known

as the Financial Services Authority and renamed on 1 April

2013 as the Financial Conduct Authority;

“Board” means the board of directors of MPAS;

“MPAS” means Montpelier Pension Administration Services

Limited;

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the “MPAS SIPPs” means the two SIPP schemes operated by

MPAS, being the Montpelier SIPP and the MPAS SIPP;

“CF1” means the Authority’s controlled function of Director;

“CF10”
means
the
Authority’s
controlled
function
of

Compliance Oversight;

“CASS” means the Client Assets Handbook;

“Compliance” means the compliance staff at MPAS;

“DEPP” means the Decision Procedures and Penalties Manual

in the Authority’s Handbook;

“EG” means the Enforcement Guide;

the “Authority’s Handbook” means the Authority’s Handbook

of rules and guidance;

“HMRC” means Her Majesty’s Revenue and Customs;

“IFA” means independent financial adviser;

“Introducers” means the IFAs with whom MPAS had entered

into agreement for the referral of new SIPP business;

“Mr Wells” means Kevin Peter Wells;

“Principles” means the Authority’s Principles for Businesses;

the “Prohibition Order” means the order to be made pursuant

to section 56 of the Act prohibiting Mr Wells from performing

any significant influence function in relation to any regulated

activity carried on by any authorised person, exempt person

or exempt professional firm;

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the “Relevant Period” means the period between 22 July 2009

and 21 January 2011;

“SIPP” means a self-invested personal pension; and

the “Tribunal” means the Upper Tribunal (Tax and Chancery

Chamber).

4.
FACTS AND MATTERS

4.1. Mr Wells was approved by the Authority to perform the

controlled function of CF1 at MPAS, a SIPP scheme operator

based in Leicester, from 22 July 2009 until 13 May 2011.

MPAS operated two schemes, the Montpelier SIPP and the

MPAS SIPP, which together comprised approximately 1,400

members during the Relevant Period.

4.2. As part of the SIPP Thematic Review, the Authority conducted

a supervisory visit to MPAS in October 2010 and identified

numerous regulatory failings, which it formally communicated

to MPAS on 21 January 2011. Between January and May

2011,
MPAS
made
provision
for
an
extensive
audit

programme and review of compliance procedures. However,

on 12 May 2011, before the results of that review were fully

implemented, MPAS sold its two schemes to another SIPP

operator. Mr Wells’ approval in relation to MPAS was

withdrawn voluntarily on 13 May 2011, and MPAS voluntarily

applied to cancel its Part IV permission on 16 June 2011.

MPAS’ cancellation was effected on 14 October 2011.

4.3. MPAS had permission to carry on the following regulated

activities:

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i) agreeing to carry on a regulated activity;

ii) arranging (bringing about) deals in investments;

iii) dealing in investments as principal;

iv) establishing/operating/winding up a personal pension

scheme; and

v) making arrangements with a view to transactions in

investments.

4.4. During the Relevant Period, MPAS had three other individuals

approved as CF1, one of whom was also approved as CF10.

Mr Wells, the managing director, was the only CF1 employed

on a full-time basis and remunerated directly by MPAS. Mr

Wells was responsible for the day-to-day running of MPAS and

was the only CF1 with oversight of all aspects of the business.

Mr Wells also had specific responsibility for MPAS’ client asset

arrangements and compliance with the Authority’s CASS

rules.

Mr Wells’ understanding of the business of MPAS and
its regulatory requirements

SIPP operation

4.5. Mr Wells was recruited as the managing director of MPAS in

July 2009 with the intention that he would drive an initiative

to promote MPAS’ SIPP schemes to a wider range of IFAs, and

thereby expand the business of MPAS. Mr Wells was

considered suitable for this role based on his previous

experience at a large SIPP operator where he was a CF1

(Director). However, that role and his experience was almost

exclusively sales based and Mr Wells therefore had no

experience in management at a regulated company. Mr Wells

relied on a non-approved administrator at MPAS for her

experience of running SIPPs, including regulatory reporting

and compliance knowledge.

MPAS’ authorisation

4.6. As managing director, Mr Wells did not understand the

meaning and effect of the specific regulated activities which

MPAS was permitted by the Authority to conduct and, as

such, could not ensure that MPAS conducted only such

business as fell within the range of those activities. Mr Wells

did not take steps to inform himself of the specific types of

regulated business which MPAS was authorised to conduct

and thereby failed to equip himself to ensure that MPAS

operated within the scope of its permission. Instead, he

considered it sufficient to rely on MPAS’ Introducers to refer

only such business as MPAS was permitted to conduct,

without itself having any internal controls in place.

4.7. Further, as managing director, Mr Wells did not understand

his own specific regulatory responsibilities as an approved

person, understanding only that he was broadly responsible

for the activities of MPAS on a day-to-day basis, but without

regard
to
his
specific
regulatory
obligations
as
CF1.

Specifically, Mr Wells was not familiar with his regulatory

responsibilities as a significant influence function holder

pursuant to the Authority’s Code of Practice for Approved

Persons as set out in the Authority’s Handbook.

Expansion of the business

4.8. During 2009, the year after Mr Wells became managing

director of MPAS, the number of individual SIPPs under MPAS’

administration
almost
doubled.
Prior
to
Mr
Wells’

employment, MPAS’ schemes comprised 365
members

(acquiring 97 new members in 2008). In 2009, that number

increased to 674 (with 309 members newly acquired in 2009).

This rate of growth increased in 2010, and by January 2011,

MPAS’
two
schemes
comprised
approximately
1,400

members.

4.9. During this period of rapid expansion, MPAS moved away

from accepting exclusively standard, ‘vanilla’ investments,

such as trustee investment plans and cash funds, and began

accepting a large proportion of more complex, esoteric and

unregulated investments into its schemes, such as life

settlement funds, overseas property, hotel rooms and unlisted

shares.

4.10. Non-standard investment types typically hold additional risk

for members because:

i) they are more likely to be deemed liable to tax by HMRC

and thereby incur significant additional tax charges;

ii) they may be inappropriate investments for members to

hold in their SIPPs on the basis that they are not readily

realisable in the event of a member’s death, or if a

member requires that they be sold at short notice; and

iii) they may be of a specialist nature such that they pose

practical
difficulties
in
terms
of
maintenance
and

administration by the SIPP operator, thereby requiring

enhanced and/or specialised systems and controls.

4.11. By March 2011, approximately 40% of the investments in the

Montpelier SIPP were non-standard, 33% of which were hotel

room investments. However, Mr Wells did not understand the

risks and regulatory implications associated with such rapid

growth and MPAS’ unusually wide offering of high-risk

investments, and he consequently failed to make adequate

provision to mitigate those risks.

Effect of expansion on MPAS’ capital adequacy

4.12. The high proportion of non-standard investments held in the

schemes presented a number of risks to the adequacy of

MPAS’ regulatory capital position. Mr Wells was not aware of

these risks, namely that:

i) if HMRC deemed these non-standard investments to be

liable to tax, both the member and MPAS (as the HMRC

registered scheme administrator) would have incurred

significant tax charges. MPAS’ liability for these scheme

sanction charges would have increased in the event that

the member could not to pay their own liability. MPAS

therefore required sufficient additional capital to be

available to meet any such liability;

ii) if tax was levied and MPAS failed to pay the tax due, HMRC

could have sought to deregister the relevant MPAS

scheme. This would have immediately given rise to penalty

tax charges should HMRC have seen fit to do so, thereby

exposing members to further significant additional loss;

and

iii) in the event that MPAS wound up the schemes (one of the

activities within its part IV permission) either as a result of

insolvency or otherwise, the high proportion of esoteric

and/or illiquid investments would significantly prolong the

time and resources required to complete an orderly wind

down. Additional capital provision would therefore have

been needed to cover the additional costs associated with

a protracted wind down.

Effect of expansion on compliance resources

4.13. The
increase
in
the
number
of
SIPPs
under
MPAS’

administration
during
the
Relevant
Period,
and
the

increasingly
non-standard
nature
of
the
investments

accepted, was not matched by increased compliance resource.

4.14. Mr Wells focused on hiring additional administration staff to

support the new business coming in. Administration staff did

not
deal
with
compliance
issues.
The
number
of

administration
staff
grew
from
approximately
three

employees in 2008 to approximately 11 in 2010. Mr Wells did

not understand or anticipate that specific additional resource

would also be required in terms of compliance budget and

dedicated compliance staff, in order to deal with the increased

regulatory requirements which accompanied MPAS’ growth

and the high proportion of esoteric investments in its SIPPs.

As such, Compliance was significantly under-resourced during

the Relevant Period and was unable to discharge its

regulatory function adequately (as described at paragraphs

4.17 to 4.18 below).

4.15. In response to this, the CF10 repeatedly raised the lack of

compliance resource with Mr Wells. Compliance at MPAS was

funded by another group company, rather than by MPAS

itself, and Mr Wells obtained approval from that company for

significant funds to hire additional administration staff and

purchase enhanced IT systems. However, he did not also seek

approval for additional funds to be allocated to compliance

costs. This was despite being aware from the CF10 that

compliance was under-resourced. Mr Wells did not then make

reasonable further efforts to obtain funding specifically for

compliance.

MPAS’ compliance arrangements

Compliance staffing

4.16. The compliance function at MPAS was executed by the CF10,

who was assisted by a non-approved administrator. Both the

CF10 and assisting administrator were employed by the

Montpelier Group rather than by MPAS itself, and provided

compliance oversight for multiple companies within the

Montpelier Group at once, devoting approximately two thirds

of their time to the other entities in the Montpelier Group and

were based permanently in another office.

4.17. In light of the fact that Compliance worked on a part-time

basis only and was based outside of its offices, Mr Wells ought

to have ensured that Compliance was sufficiently involved in

the day-to-day business of MPAS to monitor the business

thoroughly
and
identify
compliance
risks
before
they

crystallised. Instead, he was content to communicate with

Compliance only as and when specific compliance issues

presented themselves.

Compliance
access
to
client
and
management

information

4.18. Compliance should have had regular sight of the flow of

information at MPAS and full and up-to-date knowledge of the

business transacted. Mr Wells failed to ensure that client and

management information was supplied to Compliance with the

result that Compliance was not adequately immersed into the

business such as to be able to obtain this information

regularly and promptly itself.

4.19. Prior to the Relevant Period and MPAS’ growth into non-

standard investments, Compliance was able to function

adequately by requesting documentation from internal MPAS

staff as and when required, given the small size of the firm

and its narrow “vanilla” investment offering. However, by

January 2010, the business had grown, the scope of its

offering had widened, and new IT systems were in place for

storage of all client and management information. While staff

based in MPAS’ offices had access to the main server, it was

not remotely available to Compliance, which could only access

the system if visiting MPAS’ offices. Mr Wells ought to have

ensured that Compliance had full access to all the information

it required.

4.20. At some point between January 2010 and April 2010,

Compliance raised concerns with Mr Wells about its lack of

remote access to the IT systems. Compliance escalated these

concerns to two directors of MPAS’ parent company, one of

whom was also on the Board at MPAS. Remote access was

finally provided to Compliance in September 2010. Mr Wells

was therefore aware, or should reasonably have been aware,

that for a period of at least nine months, from January 2010

(when the new systems were in place and the volume and

nature of MPAS’ business had changed considerably) until

September 2010 (when Compliance was given full access to

IT systems), that compliance issues at MPAS were not being

adequately attended to and he failed to take reasonable steps

to rectify this position.

Due regard to compliance matters

4.21. This failure to ensure Compliance was embedded into the

business led to MPAS staff failing to check regulatory

documentation with Compliance for review and sign-off, such

as sophisticated investor letters. Mr Wells was not aware, as

managing director, that his staff frequently conducted

themselves in this way and did not identify that Compliance

was itself unable to monitor staff practice in this regard.

4.22. Mr Wells also demonstrated a personal disregard for

established compliance procedures at MPAS by failing to

adhere to those procedures himself. Compliance had sent an

email to Mr Wells stating that all promotional material,

specifically
including
any
internet
material,
required

Compliance review and sign-off. Mr Wells arranged publication

of an advertisement feature article for MPAS, without

ensuring that it was sent to Compliance for approval when he

was aware from an email sent to him that Compliance needed

to approve all promotional materials.

4.23. Compliance only identified serious instances of MPAS staff

bypassing Compliance on an ad hoc and reactive basis:

i) for example, Compliance was made aware by an Authority

consumer alert of the fact that a scheme into which MPAS

members had invested approximately £1 million was an

unregulated and illegal collective investment scheme run

by an unauthorised investment company. Subsequent

enquiries by Compliance revealed that Mr Wells had

received a letter from the investment company in question

four months earlier, notifying MPAS that the company had

been injuncted by the Authority and was the subject of an

investigation. Mr Wells did not pass the letter on to

Compliance and instead chose to speak to the investment

adviser concerned who told Mr Wells that his clients were

aware of the Authority’s intervention. Therefore no action

was subsequently taken to protect potentially affected

scheme members;

ii) Compliance
discovered
that
the
promotional
article

arranged by Mr Wells had been published only after

reading the industry magazine in which it appeared.

Client asset arrangements

4.24. In addition to his general oversight responsibility as managing

director of MPAS, Mr Wells took on specific responsibility for

MPAS’ client asset arrangements and compliance with the

CASS rules. However, he did not understand, nor did he seek

to make himself aware of, the specific CASS requirements to

which MPAS was subject. MPAS was, in fact, in breach of the

CASS rules throughout the Relevant Period.

4.25. During the Relevant Period, MPAS failed to hold client assets

in accordance with the Authority’s CASS rules, exposing

customers to a risk of loss of assets in the event that MPAS

failed. It was identified as a result of the Authority’s

supervisory visit in October 2010 that MPAS had failed to:

i) designate accounts in which client money was pooled as

being client accounts rather than MPAS accounts, creating

a risk of client money being co-mingled with that of MPAS,

in breach of CASS 7.8.1R(1)(b);

ii) have trust status notification letters in place in relation to

each of its client accounts, in breach of CASS 7.8.1R(2);

iii) carry out reconciliations between its own records of

physical shares and those of the custodian bank, in breach

of CASS 6.2.2 and CASS 6.5.6; and

iv) ensure that its client asset records accurately reflected the

assets held by individual clients at all times. MPAS did not

have systems in place to enable it readily to ascertain

client positions and, as such, its records did not give an

accurate and up-to-date reflection of client assets held.

4.26. In August 2010, Mr Wells gave assurance to Compliance that

the firm was operating in accordance with its CASS

requirements, and this assurance was provided to the

Authority. However, Mr Wells gave that assurance without

ensuring that this was in fact correct.

Due diligence and monitoring of Introducers

4.27. Mr Wells acted as business liaison between MPAS and its

Introducers, making personal visits to their offices every two

months on average. His visits were designed to encourage

referrals. However, Mr Wells did not consider that MPAS had

an obligation to satisfy itself that the advice given to SIPP

members by Introducers did not present any clear consumer

detriment, nor did he consider that MPAS should take steps to

monitor trends in the types of business being referred, in

order to identify any risks such as financial crime. No

procedures were in place to such effect.

4.28. The Authority had explicitly set out in its SIPP thematic report

published in September 2009 that a SIPP operator has a duty

to members to satisfy itself that the advice given by IFAs to

those members does not cause consumer detriment (by way

of unsuitable SIPP investments, for example), and to contact

members where it has concerns. The Authority’s thematic

report, which Mr Wells read at the time of publication,

included guidance which stated that a SIPP operator has an

express duty to members to conduct an adequate assessment

of the Introducers from which it accepts business, and a duty

to analyse management information in order to identify

trends in the sources of its business which might indicate risk

to members or MPAS itself (including financial crime).

4.29. MPAS’ due diligence on the Introducers from whom it

accepted new business consisted only of a search on the

Financial Services Register each time an application for new

business was received to ensure that the introducing firm was

still authorised. MPAS did not carry out any other monitoring,

such as identifying and analysing referral trends, which would

have enabled it to be satisfied that Introducers were

recommending SIPP investments only where it was suitable to

members and only where the investment type was suitable to

MPAS. Indeed, Mr Wells considered that MPAS’ Register check

on Introducers was over and above what should reasonably

be expected of a SIPP operator, because, he asserted, other

SIPP operators tended not to conduct any due diligence on

Introducers at all.

4.30. Moreover, MPAS’ lack of adequate monitoring of Introducers

was identified by Compliance when the Authority’s report was

published, and Compliance made a specific recommendation

to Mr Wells and to the Board that appropriate procedures be

implemented. While one procedure was put in place in early

2010 as a result (an ‘appropriateness test’ which was

intended to assist MPAS in verifying that a new SIPP applicant

was best suited to a SIPP rather than an ordinary personal

pension), Mr Wells failed to ensure that this was procedure

was properly adhered to by staff processing new business.

4.31. After the Authority had communicated its concerns to MPAS in

January 2011 regarding the firm’s lack of due diligence and

monitoring of Introducers, Compliance conducted an audit

which identified a trend of exclusively high-risk business

being referred by certain Introducers, indicating that those

Introducers were not referring investors to MPAS according to

suitability alone, and importing significant risk to members

and MPAS alike. Compliance identified two Introducers as

having habitually referred an unacceptably high volume of

high-risk investments, or as having advised clients who were

not sophisticated investors to place the entirety of their SIPP

funds into high-risk investments. As a result, Compliance

recommended to the Board that MPAS terminate its

relationship with those Introducers, and termination took

effect in December 2010.

Due diligence of new assets to be accepted into MPAS’
schemes

4.32. MPAS’ procedures for assessing the suitability of new

investments were not adequately strengthened during the

Relevant Period for the higher-risk products which it had

begun to accept. As described at paragraphs 4.10 to 4.11

above, Mr Wells did not understand the nature of the

attached risks and consequently did not take adequate steps

to ensure that MPAS’ assessment procedure was sufficiently

robust.

4.33. MPAS’ procedure for assessing new applications for SIPP

investment began with the New Business team, which

consisted of two administrators. New applications were first

vetted by the New Business team, which would assess those

applications by reference to a list of approved investment

types. Those not appearing on the list would be classed as

either low-risk/standard, or higher-risk/non-standard and

therefore in need of specific due diligence in order to

ascertain suitability. No procedure was in place at this early

vetting stage to ensure that the New Business team’s

assessment of an investment as low or high risk was correct,

because Mr Wells assumed that the individuals assessing

those investment applications “would just know”.

4.34. Those investments identified as non-standard were then

referred for assessment by a management committee

convened by Mr Wells (later referred to within MPAS as the

investment committee). This committee was made up of Mr

Wells, a sales manager and two administrators, but had no

Board or Compliance involvement. Mr Wells considered that

Compliance in particular did not have adequate knowledge to

contribute, and therefore did not include it in the process of

assessing the suitability of new investments.

4.35. The committee’s assessment of new investments was

generally limited to whether those investments accorded with

HMRC requirements. There were no agreed considerations for

the committee, such as the suitability of terms and conditions

(including exit terms), proposed valuation methodologies, or

illiquidity. Further, there was no specific due diligence carried

out on the providers of new investment types, nor on the

background information provided to MPAS by the Introducers.

Nor was specific consideration given to whether a new asset

type might, in addition to being potentially unsuitable for

members, have regulatory implications for MPAS itself.

Further,
committee
meetings
were
not
thoroughly

documented so that investment acceptance decisions could be

readily accessed and understood by others, and they were not

formally reported to the Board or Compliance.

4.36. In or around February 2011, during the course of remedial

work undertaken following the Authority’s supervisory visit,

MPAS identified the extent of the risk to which it had exposed

members by accepting large numbers of non-standard

investments and ultimately took the decision to cease

accepting
hotel
rooms
investments
and
unregulated

investments altogether (albeit three months before MPAS sold

its schemes).

Identification and monitoring of SIPP assets

4.37. MPAS did not have adequate systems and controls in place to

monitor and administer SIPP assets on an ongoing basis. Mr

Wells did not ensure that there was an appropriate system in

place by which MPAS could identify the exact assets held for

individual members, nor was there a system in place by which

MPAS could instantaneously ascertain the current value of

those assets (for example through real-time price feeds).

Instead, MPAS relied on obtaining delayed valuations upon

request to the relevant investment platforms. Mr Wells did

not make reasonable effort during the Relevant Period to

identify and implement a method by which MPAS could

regularly and closely monitor the value of assets held for

individual members. It was only after the Authority identified

this weakness in MPAS’ systems and controls that Mr Wells

ensured, in February 2011, that MPAS acquired an IT system

which provided a regular and accurate feed of information on

the nature and current value of assets.

Due diligence and monitoring of discretionary fund
managers

4.38. A proportion of the assets administered by MPAS were

managed by discretionary fund managers during the Relevant

Period, and MPAS typically entered into agreements with

those discretionary fund managers upon recommendation by

MPAS’
Introducers.
However,
no
due
diligence
was

undertaken in relation to the recommended fund managers,

nor was any ongoing monitoring undertaken to ensure that

those with responsibility for management of members’ assets

were doing so properly. One of MPAS’ administrators was

responsible for overseeing those relationships, including

ensuring that agreements were in place for all fund

managers. However, without adequate oversight from Mr

Wells, MPAS had in fact failed to put agreements in place in

every case, conferring responsibility for the management of

its members’ assets to all but one of its fund managers (of

which there were approximately 20) without ensuring that

terms of business had been agreed to govern that

arrangement. Mr Wells was not aware that these agreements

had not been put in place until notified by the Authority in

January 2012, after its supervisory visit.

Use of management information

4.39. MPAS did not routinely gather management information and

was thereby unable to identify areas of risk to both itself and

to members. Regular collation and analysis of management

information should have enabled the Board to have a clear

understanding of vital aspects of the business, such as the

effectiveness of its compliance procedures, its adherence to

service standards and trends indicating risk in the types of

business being referred and accepted. However, Mr Wells did

not ensure that management information was put to the

Board or that Compliance had such information to enable it to

conduct regular audits. While Mr Wells was aware that neither

the Board nor Compliance made use of management

information, he did not understand the importance of such

information to MPAS’ ability to comply with regulatory

requirements, and therefore took no steps to ensure that the

Board had access to and made adequate use of it.

5.
FAILINGS

5.1. The relevant statutory provisions and regulatory requirements

are set out in the Annex to this Notice.

5.2. The
Authority considers that Mr Wells has breached

Statement of Principle 6 by failing to exercise due skill, care

and diligence in managing the business of MPAS, for which he

was responsible in his controlled function of CF1, on the basis

of the specific failings detailed below.

Failure to understand the business of MPAS and its
regulatory requirements

5.3. Mr Wells lacked an adequate understanding of the nature of

MPAS’ business, and, in particular, the regulatory implications

and risks associated with operating a SIPP scheme comprising

a large number of esoteric investments. Where Mr Wells’

previous experience was sales-based, his focus at MPAS was

similarly narrow to the exclusion of important regulatory

considerations that came within his remit as CF1.

5.4. Mr Wells failed to exercise due skill, care and diligence by

giving insufficient consideration to compliance and to the

safety
of
members’
investments,
including
failing
to

understand the consequences and risks of accepting a high

volume of illiquid non-standard investments into the MPAS

schemes. By failing to ensure MPAS could identify such

issues, Mr Wells caused scheme members to be exposed to

additional risks such as formulaic selling by introducers,

unsuitable
recommendations
for
illiquid
or
volatile

investments, or the potential imposition of a range of tax

charges.

5.5. Mr Wells was unaware of MPAS’, and his own, regulatory

responsibilities to the extent that he was unaware of the

regulated activities which MPAS was permitted to conduct.

Also, Mr Wells had no knowledge of his own specific

responsibilities
as
an
approved
person
performing
a

significant influence function. Without this basic regulatory

knowledge, Mr Wells was not equipped to manage and

oversee the business of MPAS competently.

5.6. Additionally, Mr Wells did not understand the significance of

certain
systems
and
controls,
including
the
use
of

management information to identify and mitigate areas of risk

in the business, and due diligence and continued monitoring

of Introducers and discretionary fund managers and the SIPP

assets, which would have reduced the risk of members being

unsuitably advised or their assets unsafely managed.

5.7. Mr Wells’ lack of understanding of the CASS rules and his lack

of attention to client asset arrangements at MPAS meant he

was unaware that MPAS was in breach of CASS rules in

numerous significant respects during the Relevant Period. Mr

Wells neglected CASS issues despite the Authority having sent

two communications during the Relevant Period which

stressed the importance of safe custody of client assets and

he thereby created an unacceptable risk of loss to consumers.

Failure to make adequate compliance provision and
failure to monitor or assess the risks arising from the
lack of adequate compliance provision

5.8. Mr Wells’ failed to exercise due skill, care and diligence in

managing the business of MPAS by failing to understand the

relevance and importance of adequate compliance. Given that

MPAS had undergone a period of significant growth during the

Relevant Period, involving a significant increase in the number

of non-standard investments accepted into its schemes, Mr

Wells should have recognised the need to ensure that MPAS’

systems and controls were robust in order to mitigate the

increased risk to both scheme members and the business of

MPAS
itself.
However,
he
did
not
have
sufficient

understanding of the regulatory capital or compliance needs

of an authorised SIPP operator, particularly with regard to

non-standard investments.

5.9. Mr Wells did not understand that an increased proportion of

non-standard investments brought with it an increased risk of

tax charges being incurred, both by members and MPAS. Had

Mr Wells understood this, he would have identified the need

to make additional capital provision to ensure that MPAS

could pay any tax liability as it fell due. Mr Wells also failed to

understand that a scheme comprising a high proportion of

non-standard assets will take considerably more time and

resource to wind down than one comprising standard assets,

and he failed to ensure that additional capital was available

should MPAS have needed to wind down one or both of its

schemes.

5.10. Mr Wells failed to identify the need for a full-time, integrated

compliance team. He also failed to ensure that, what

compliance resource there was, had full and unfettered access

to the necessary information and IT systems it needed given

that the resource was not embedded into the business.

5.11. Although the ultimate decision as to MPAS’ compliance budget

lay with another group company, Mr Wells should have made

greater effort either to allocate existing MPAS funds to

compliance, or to highlight to the funding company the

importance of making adequate compliance provision in order

to safeguard members’ interests and ensure that MPAS could

conduct regulated business in a compliant manner. Mr Wells

should have escalated the issue of compliance funding more

quickly and decisively than he did after Compliance raised the

lack of resource with him. He should also have recognised the

serious effect that a lack of adequate compliance provision

would have on MPAS’ ability to operate its schemes in the

best interests of members and in satisfaction of its own

regulatory obligations.

5.12. Further, it was Mr Wells’ responsibility as managing director

to provide adequate support to Compliance in all other

respects, including by ensuring unrestricted access to the

necessary client and management information (which was an

issue brought specifically to his attention by Compliance early

in the Relevant Period) and by overseeing staff to ensure that

they operated with due consideration to compliance matters.

Indeed, Mr Wells’ failure to understand the relevance and

importance of regulatory compliance was so fundamental that

he personally circumvented established procedure in relation

to promotional material.

5.13. The Authority therefore considers that Mr Wells exercised a

lack of due skill, care and diligence in his fundamental lack of

understanding of the nature of MPAS’ business and its

compliance needs, in breach of Statement of Principle 6, and

has thereby demonstrated a serious lack of competence and

capability as a significant influence function holder.

Breach of Statement of Principle 7

5.14. The
Authority considers that
Mr Wells has breached

Statement of Principle 7 by failing to take reasonable steps to

ensure that the business of MPAS, for which he was

responsible in his controlled function of CF1, complied with

the relevant requirements and standards of the regulatory

system on the basis of the specific failings detailed below.

Failure to take reasonable steps to ensure that MPAS
complied with its regulatory requirements under the
CASS rules

5.15. In addition to his general oversight responsibility as the

managing director of MPAS, Mr Wells was responsible for

ensuring that MPAS complied with its regulatory obligations in

relation to client assets, as per the CASS rules. However, Mr

Wells failed to take reasonable steps to ensure that MPAS had

adequate systems and controls in place such as, for example,

trust letters for each account in which client money was

pooled and client accounts being properly designated as such.

Mr Wells could reasonably have delegated the task of

implementing and maintaining CASS systems and controls to

another individual at MPAS (with adequate oversight) but did

not do so, and he failed to give adequate attention to CASS

issues himself.

5.16. By failing to take reasonable steps to ensure CASS

compliance, Mr Wells allowed MPAS to operate in breach of

CASS rules, and he thereby exposed members to the risk that

their funds may not be recognised as client monies and be co-

mingled with those of MPAS in the event of MPAS’ liquidation.

Failure to take steps to ensure that MPAS had adequate
systems and controls in place to enable it to comply
with its regulatory requirements

5.17. In his role as managing director, and especially in light of

MPAS’ expansion into non-standard investments during the

Relevant Period, Mr Wells should have taken reasonable steps

to ensure that MPAS’ systems and controls were strengthened

sufficiently to counter the increased risks to both scheme

members and the business of MPAS itself. However, Mr Wells

failed to take reasonable steps to ensure that adequate

systems and controls were in place in the following respects.

Use of management information

5.18. Mr Wells did not take steps to ensure that MPAS made

adequate use of management information so as to enable it

to identify areas of risk to both members and to MPAS’ itself.

Mr Wells should have ensured that Compliance and the Board

in particular had ready access to management information

reports at its quarterly meetings in order to allow it to govern

the firm effectively. MPAS did not utilise management

information to identify and mitigate areas of risk, with the

effect that it only acted upon key areas of risk (such as

certain Introducers recommending unacceptably high volumes

of risky investments to some members) after they were

highlighted by the Authority following its supervisory visit in

October 2010.

Due diligence and monitoring of Introducers

5.19. As both managing director and MPAS’ liaison with Introducers,

Mr Wells failed to take reasonable steps to ensure that MPAS

conducted adequate due diligence and continued monitoring

on those firms. Mr Wells concentrated his efforts on fostering

business
opportunities
for
Introducers
without
taking

reasonable steps to ensure that those Introducers were

advising scheme members in relation to suitable SIPP

investments
only,
in
satisfaction
of
MPAS’
regulatory

obligation as a SIPP operator to ensure that its members

were being properly advised. Mr Wells’ lack of understanding

of the obligations of a SIPP operator to its members in this

respect is demonstrated by his assessment, after reading the

Authority’s thematic report, that MPAS was actually meeting

its regulatory obligations to a satisfactory level.

Due diligence of assets

5.20. Mr Wells failed to take reasonable steps to ensure that

sufficiently robust procedures were implemented to ensure

that an adequately high proportion of non-taxable assets were

accepted into MPAS’ SIPPs to balance the non-standard

investments and to reduce that risk of loss to members.

There was insufficient expertise available and inadequate

procedural controls in place to conduct thorough due diligence

on new investment types. Mr Wells could have recommended

to the Board at the outset that MPAS seek legal advice on the

suitability of higher-risk assets, or that it outsource the

assessment of new investment types to an external

consultant with relevant expertise. However, he kept such

assessment in-house for most of the Relevant Period and

failed to involve both the Board and Compliance in that

process.

Identification and monitoring of SIPP assets

5.21. Accurate identification and monitoring of SIPP assets should

have been of particular concern to Mr Wells during the

Relevant Period given the large proportion of non-standard,

investments under MPAS’ administration. However, Mr Wells

failed to take reasonable steps to ensure that MPAS was able

to identify and monitor assets accurately on behalf of

members. He did not ensure that MPAS had access to regular

and accurate asset information, which would have been easily

obtainable via software providing regular and live price feeds.

Mr Wells thereby failed to ensure that MPAS was able to

30

satisfy its basic obligation to SIPP members to maintain

proper control over the assets it held for their benefit.

Due diligence and monitoring of discretionary fund managers

5.22. Mr Wells failed to ensure that any controls were in place in

relation to discretionary fund managers, in the form of

agreements setting out the terms on which SIPP assets were

to be managed. By failing in this regard, Mr Wells exposed

members to the risk that their assets would be mismanaged

without detection by MPAS, and especially given that no other

procedures were in place for continuous monitoring of

discretionary fund managers.

5.23. The Authority therefore considers that in having failed to take

reasonable steps to ensure that systems and controls were in

place in key areas of MPAS’ business, in breach of Statement

of Principle 7, Mr Wells has demonstrated a serious lack of

competence and capability as a significant influence function

holder.

6.
SANCTIONS

Public censure

6.1. The Authority publicly censures Mr Wells for breaching

Statements of Principle 6 and 7.

6.2. The Authority’s policy on the imposition of financial penalties

is set out in Chapter 6 of DEPP. The relevant sections of DEPP

are set out in more detail in the Annex of this Notice. Since

the gravamen of Mr Wells’ failings occurred after the change

in the regulatory provisions governing the determination of

financial penalties and public censures on 6 March 2010, the

Authority has applied the provisions that were in place after

that date. All references to DEPP in this Notice are references

to the version in force from 6 March 2010.

6.3. In addition, the Authority has had regard to the corresponding

provisions of Chapter 7 of EG in force during the Relevant

6.4. The principal purpose of issuing a public censure or imposing

a financial penalty is to promote high standards of conduct by

deterring persons who have committed regulatory breaches

from committing further breaches, helping to deter others

from
committing
similar
breaches
and
demonstrating

generally the benefits of compliant behaviour. A public

censure is a tool that the Authority may employ to help it

achieve its regulatory objectives.

6.5. In determining whether a financial penalty or public censure is

appropriate, the Authority is required to consider all the

relevant circumstances of the case. Applying the criteria set

out in DEPP 6.2.1G (regarding whether or not to take action

for a financial penalty or public censure) and 6.4.2G

(regarding whether to impose a financial penalty or a public

censure), the Authority considers that a public censure is an

appropriate sanction.

6.6. In deciding to issue a public censure, the Authority considered

that the factors below were particularly relevant in this case.

Deterrence (DEPP 6.4.2G(1)

6.7. In proposing to publish a statement of Mr Wells’ misconduct

the Authority has had regard to the need to ensure that those

who are approved persons are fit and proper and fully engage

with their regulatory responsibilities. The Authority considers

that a public censure should be imposed to demonstrate to Mr

Wells and others the seriousness with which the Authority

regards his behaviour.

The seriousness of the breach in question (DEPP 6.4.2G(3))

6.8. Mr Wells failed to ensure that he understood his own basic

regulatory obligations and those of the firm of which he was in

charge. This failure occurred while Mr Wells presided over the

rapid expansion of the business and a significant change in

the nature of its investment book, which became increasingly

non-standard. These factors required particular managerial

care and expertise, which Mr Wells failed to demonstrate, with

the result that MPAS operated in breach of its regulatory

requirements in numerous key respects and members were

consequently exposed to additional risk.

Conduct following the breach (DEPP 6.4.2G(5))

6.9. Mr Wells has given full and immediate co-operation to the

Authority. Mr Wells is not aware of any investor having

suffered a loss or being prejudiced.

Previous action taken by the Authority (DEPP 6.4.2G(7))

6.10. In determining the appropriate sanction, the Authority took

into account sanctions imposed by the Authority on other

approved persons for similar behaviour. This was considered

alongside the deterrent purpose for which the Authority

imposes sanctions.

The financial impact on the person concerned (DEPP

6.11. The Authority views Mr Wells’ misconduct as very serious and

would have imposed a financial penalty of £58,500. However,

the Authority has taken into account in determining that it is

appropriate to issue a public censure, rather than impose a

financial penalty, that Mr Wells has provided verifiable

evidence that he would suffer serious financial hardship if the

Authority imposed a financial penalty.

6.12. For these reasons, it is appropriate to publicly censure Mr

Wells, but not to impose a financial penalty on him.

6.13. The Authority considers it appropriate and proportionate in all

the circumstances to prohibit Mr Wells from performing any

significant influence function in relation to any regulated

activity carried out by an authorised person, exempt person

or exempt professional firm because he is not a fit and proper

person in terms of competence and capability.

6.14. The Authority has had regard to the guidance in Chapter 9 of

EG in proposing that Mr Wells be prohibited from performing

controlled functions involving the exercise of significant

influence. The relevant provisions of EG are set out in the

Annex of this Notice.

6.15. Given the nature and seriousness of the failures outlined

above, the Authority considers that Mr Wells’ conduct

demonstrated a lack of competence and capability such that

he is not fit and proper to perform any significant influence

function in relation to regulated activities carried on at any

authorised person, exempt person or exempt professional

firm. In particular, Mr Wells demonstrated a lack of regard for

the standards and requirements of the regulatory system. In

the interests of consumer protection, the Authority deems it

appropriate and proportionate in all the circumstances to

impose the Prohibition Order on Mr Wells in the terms set out

above.

7.
CONCLUSION

7.1. On the basis of the facts and matters described above, the

Authority considers that Mr Wells’ conduct as CF1 of MPAS fell

short of the minimum regulatory standards required of an

approved person and that he has breached Statements of

Principle 6 and 7, and that he is not fit and proper to be an

approved person.

7.2. The Authority, having regard to all the circumstances,

therefore considers that it is appropriate and proportionate to

censure Mr Wells publicly and to make the Prohibition Order

against him.

8.
PROCEDURAL MATTERS

Decision Maker

8.1
The decision which gave rise to the obligation to give this

Notice was made by the Settlement Decision Makers.

8.2
This Final Notice is given under and in accordance with section

390 of the Act.

8.3
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 Wells or prejudicial to the

interests of consumers or detrimental to the stability of the

UK financial system.

8.4
The Authority will publish such information about the matter

to which this Final Notice relates as it considers appropriate.

Authority contact

8.5
For more information concerning this matter generally, Mr

Wells should contact Rachel West of the Enforcement and

Financial Crime Division of the Authority (direct line: 020

7066 0142/ fax: 020 7066 0143).

Financial Conduct Authority, Enforcement and Financial Crime
Division

36

ANNEX

STATUTORY
PROVISIONS,
REGULATORY
GUIDANCE

AND POLICY

1.
STATUTORY PROVISIONS

1.1. Section 56 of the Act provides that the Authority may make a

prohibition order if it appears to the Authority that an

individual is not a fit and proper person to perform functions

in relation to a regulated activity carried on by an authorised

person. Such an order may relate to a specific regulated

activity, an activity falling within a specified description or all

regulated activities.

1.2. Section 66 of the Act provides that the Authority may publish

a statement of a person’s misconduct where it appears to the

Authority that the individual is guilty of misconduct and it is

satisfied that it is appropriate in all the circumstances to take

action. Misconduct includes failure, while an approved person,

to comply with a statement of principle issued under section

64 of the Act or to have been knowingly concerned in a

contravention by the relevant authorised person of a

requirement imposed on that authorised person by or under

the Act.

2.
REGULATORY PROVISIONS

2.1. In exercising its power to issue a public censure, the Authority

must have regard to relevant provisions in the Authority

Handbook.

2.2. The Authority’s Enforcement Guide (“EG”) and Decision

Procedure and Penalties Manual (“DEPP”) came into effect on

28 August 2007.

2.3. The guidance and policy that the Authority considers relevant

to this case is set out below.

Statements of Principle and the Code of Practice for
Approved Persons (“APER”)

2.4. APER sets 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. It further describes 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

2.5. APER 3.1.3G states that when establishing compliance with or

a breach of a Statement of Principle, account will be taken of

the context in which a course of conduct was undertaken,

including the precise circumstances of the individual case, the

characteristics of the particular controlled function and the

behaviour to be expected in that function.

2.6. APER 3.1.4G provides that an approved person will only be in

breach of a Statement of Principle where he is personally

culpable; that is, in a situation where his conduct was

deliberate or where his standard of conduct was below that

which would be reasonable in all the circumstances.

2.7. APER 3.1.6G provides that APER (and in particular the specific

examples of behaviour which may be in breach of a generic

description of conduct in the code) is not exhaustive of the

kind of conduct that may contravene the Statements of

Principle.

2.8. The Statements of Principle relevant to this matter are:

38

(i)
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; and

(ii)
Statement of Principle 7, which provides that an

approved person performing a significant influence

function must take reasonable steps to ensure that the

business of the firm for which he is responsible in his

controlled
function
complies
with
the
relevant

requirements and standards of the regulatory system.

2.9. APER 3.1.8G states that in applying Statements of Principle 5

to 7, the nature, scale and complexity of the business under

management and the role and responsibility of the individual

performing a significant influence function within the firm will

be relevant in assessing whether an approved person's

conduct was reasonable.

2.10. APER 3.3.1E states that in determining whether or not the

conduct of an approved person performing a significant

influence function complies with Statement of Principles 5 to

7, the following are factors are to be taken into account:

i) whether he exercised reasonable care when considering

the information available to him;

ii) whether he reached a reasonable conclusion which he

acted on;

iii) the nature, scale and complexity of the firm’s business;

iv) his role and responsibility as an approved person

performing a significant influence function; and

v) the knowledge he had, or should have had, of regulatory

concerns, if any, arising in the business under his control.

2.11. APER 4.6 lists types of conduct which, in the opinion of the

Authority, do not comply with Statement of Principle 6.

2.12. APER 4.6.3E states that failing to take reasonable steps to

adequately inform himself about the affairs of the business for

which he is responsible is conduct that does not comply with

Statement of Principle 6.

2.13. APER 4.6.4E states that permitting transactions without a

sufficient understanding of the risks involved or inadequately

monitoring highly profitable transactions or business practices

or unusual transactions is conduct that does not comply with

2.14. APER 4.6.6E states that failing to take reasonable steps to

maintain an appropriate level of understanding about an issue

or part of the business that he has delegated to an individual

or individuals (whether in-house or outside contractors) is

conduct that does not comply with Statement of Principle 6.

2.15. APER 4.7 lists types of conduct which, in the opinion of the

Authority, do not comply with Statement of Principle 7.

2.16. APER 4.7.3E states that failing to take reasonable steps to

implement (either personally or through a compliance

department or other departments) adequate and appropriate

systems of control to comply with the relevant requirements

and standards of the regulatory system in respect of its

regulated activities is conduct that does not comply with

Statement of Principle 7.

2.17. APER 4.7.4E states that failing to take reasonable steps to

monitor
(either
personally
or
through
a
compliance

department or other departments) compliance with the

relevant requirements and standards of the regulated system

in respect of its regulated activities is conduct that does not

comply with Statement of Principle 7.

2.18. APER 4.7.7E provides that failing to take steps to ensure that

procedures and systems of control are reviewed and, if

appropriate,
improved,
following
the
identification
of

significant breaches (whether suspected or actual) of the

relevant requirements and standards of the regulatory system

relating to its regulated activities is conduct that does not

comply with Statement of Principle 7.

2.19. APER 4.7.8E states that behaviour of the type referred to at

APER 4.7.7E includes unreasonably failing to implement

recommendations
for
improvements
in
systems
and

procedures.

Fit and Proper Test for Approved Persons (“FIT”)

2.20. The part of the Authority Handbook entitled “FIT” sets out the

Fit and Proper Test for Approved Persons. The purpose of FIT

is to outline the main criteria for 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.

2.21. FIT 1.3.1G provides that the Authority will have regard to a

number of factors when assessing a person’s fitness and

propriety. One of the considerations will be the person’s

competence and capability.

2.22. As set out in FIT 2.2, in determining a person’s competence

and capability, the Authority will have regard to matters

including but not limited to:

i)
whether the person satisfies the relevant Authority

training and competence requirements in relation to the

controlled function the person performs or is intended to

perform; and

ii)
whether the person has demonstrated by experience

and training that the person is able, or will be able if

approved, to perform the controlled function.

Enforcement Guide (“EG”)

2.23. The Authority’s approach to exercising its powers to withdraw

approval under section 63 of the Act and make a Prohibition

Order under section 56 of the Act is set out in Chapter 9 of

EG.

2.24. EG 9.1 states that the Authority’s power under section 56 of

the Act to prohibit individuals who are not fit and proper from

carrying out controlled functions in relation to regulated

activities helps the Authority to work towards achieving its

regulatory objectives. The Authority may exercise this power

to make a prohibition order where it considers that, to

achieve any of those 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.

2.25. EG 9.4 sets out the general scope of the Authority’s power in

this respect. The Authority has the power to make a range of

prohibition orders depending on the circumstances of each

case and the range of regulated activities to which the

individual’s lack of fitness and propriety is relevant.

2.26. EG 9.5 provides that the scope of the prohibition order will

depend on the range of functions which the individual

concerned performs in relation to regulated activities, the

reasons why he is not fit and proper and the severity of risk

which he poses to consumers or the market generally.

2.27. In circumstances where the Authority has concerns about the

fitness and propriety of an approved person, EG 9.8 to 9.14

provides guidance. In particular, EG 9.8 states that the

Authority may consider whether it should prohibit that person

from performing functions in relation to regulated activities,

and that the Authority will consider whether its regulatory

objectives
can
be
achieved
adequately
by
imposing

disciplinary sanctions.

2.28. EG 9.9 provides that when deciding whether to make a

prohibition order against an approved person, the Authority

will consider all the relevant circumstances of the case. These

may include, but are not limited to, the following:

i) whether the individual is fit and proper to perform the

functions in relation to regulated activities. The criteria for

assessing the fitness and propriety of approved persons in

terms of competence and capability is set out in FIT 2.2;

ii) whether, and to what extent, the approved person has

failed to comply with the Statements of Principle issued by

the Authority with respect to the conduct of approved

persons, or been knowingly involved in a contravention by

the relevant firm of a requirement imposed on the firm by

or under the Act (including the Principles and other rules

(EG 9.9(3)(a) and (b));

iii) the relevance and materiality of any matters indicating

unfitness (EG 9.9(5));

iv) the length of time since the occurrence of any matters

indicating unfitness (EG 9.9(6));

v) the particular controlled function the approved person is

(or was) performing, the nature and activities of the firm

concerned and the markets in which he operates or

operated (EG 9.9(7)); and

vi) the severity of the risk which the individual poses to

consumers and to confidence in the financial system (EG

9.9(8)).

2.29. EG 9.12 provides a number of examples of types of behaviour

which have previously resulted in the Authority deciding to

issue a prohibition order. The examples include serious lack

of competence and serious breaches of the Statements of

2.30. EG 9.23 provides that in appropriate cases the Authority may

take other action against an individual in addition to making a

prohibition order, including the use of its power to impose a

financial penalty.

Decision Procedure and Penalties Manual (“DEPP”)

2.31. Guidance on the imposition and amount of penalties is set out

in Chapter 6 of DEPP. Changes to DEPP 6 were introduced on

6 March 2010. The Authority has had regard to the

appropriate provisions of DEPP that applied during the

Relevant Period. Where the gravamen of the misconduct

occurred after 6 March 2010, the Authority considers that the

provisions of DEPP which applied after that date should apply.

2.32. DEPP 6.1.2G provides that the principal purpose of imposing a

public censure is to promote high standards of regulatory

and/or market conduct by deterring persons who have

committed breaches from committing further breaches,

helping to deter other persons from committing similar

breaches, and demonstrating generally the benefits of

compliant behaviour. Public censures are therefore tools that

the Authority may employ to help it to achieve its regulatory

objectives.

2.33. DEPP 6.4.1G provides that the Authority will consider all the

relevant circumstances of a case when deciding whether to

impose a penalty or issue a public censure.

2.34. DEPP 6.4.2G sets out a non-exhaustive list of factors that

may be relevant to determining whether a public censure or

financial penalty is appropriate to be imposed on a person

under the Act. The following factors are relevant to this case:

Deterrence: DEPP 6.4.2G(1)

2.35. When determining whether to issue a public censure rather

than a financial penalty, the Authority will have regard to the

principal purpose for which it imposes sanctions, namely to

promote high standards of regulatory and/or market 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 nature, seriousness and impact of the breach in
question: DEPP 6.4.2G(3)

2.36. The Authority will consider the nature, seriousness and impact

of the breach on the basis that the sanction should reflect the

seriousness of the breach. The more serious the breach, the

more likely the Authority is to impose a financial penalty.

Co-operation with Authority and action since the
breach: DEPP 6.4.2G(5)

2.37. The Authority will consider whether the person has admitted

the breach, provided full and immediate co-operation to the

Authority or taken steps to ensure that those who have

suffered loss due to the breach are fully compensated for that

loss. Actions of this kind taken by the person suggest that it

may be more proportionate to issue a public censure than a

financial penalty.

Other action taken by the Authority (or a previous
regulator): DEPP 6.4.2G(7)

2.38. The Authority seeks to apply a consistent approach to

determining the appropriate level of penalty. The Authority

may take into account previous decisions made in relation to

similar misconduct.

Impact on the person: DEPP 6.4.2G(8)

2.39. The Authority will also consider the impact on the person of a

financial penalty. In exceptional circumstances only, the

Authority may decide, based verifiable evidence, that the

person does not have adequate resources with which to pay a

financial penalty and may therefore, in those exceptional

circumstances, lower the level of penalty or issue a public

censure instead.