FINAL NOTICE

To:
R. Raphael & Sons plc

1.
ACTION

1.1.
For the reasons given in this Final Notice, the Authority hereby imposes on R.

Raphael & Sons plc (“Raphaels” or “the Firm”) a financial penalty of £775,100

pursuant to section 206 of the Act.

1.2
Raphaels agreed to resolve this matter and qualified for a 30% (Stage 1) discount

under the Authority’s executive settlement procedures. Were it not for this

discount, the Authority would have imposed a financial penalty of £1,107,414 on

the Firm.

2.
SUMMARY OF REASONS

2.1.
The Firm is an independent bank involved in the provision of banking and related

financial services. The Firm is regulated by the Authority for conduct matters and

the PRA for prudential purposes.

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2.2.
The Firm’s business includes a Payment Services Division which issues prepaid

cards and charge cards in the UK and Europe. As of 2016, the Firm had

approximately 5.3 million prepaid cards in issue in the UK and other European

countries with average monthly transaction volumes of over £450 million.

2.3.
The Firm contracts with outsource service providers to provide services critical for

the performance of its Payment Services Division. These outsourced critical

services include: (i) the management of the Firm’s Card Programmes by Card

Programme Managers; and (ii) the authorisation of payment transaction requests

from Card Payment Systems on behalf of the Firm (this service was itself sub-

contracted by Card Programme Managers to Card Processors).

2.4.
During the early hours of 24 December 2015, a technology incident occurred at a

Card Processor resulting in the complete failure of all services it provided to the

Firm for three Card Programmes (the “IT Incident”).

2.5.
As a result of the IT Incident, which lasted over eight hours, 3,367 of the Firm’s

customers were unable to use their prepaid cards and charge cards during this

time on Christmas Eve. In total, the Card Processor could not authorise 5,356

customer card transactions attempted at point of sale terminals, ATM machines

and online (worth an aggregated value of £558,400). The IT Incident also

prevented customers from viewing their card balances online.

2.6.
The cause and duration of the IT Incident reflected shortcomings in Raphaels

understanding of the business continuity and disaster recovery arrangements of

the Card Processor. The Firm had no adequate processes for capturing and

assessing information regarding these arrangements, particularly how they would

support the continued operation of the Card Programmes during a disruptive

event.

2.7.
The absence of any adequate processes for capturing and assessing information

about the Card Processor’s business continuity and disaster recovery

arrangements exposed the Firm and its customers to a serious risk of harm. As

Raphaels was unaware of the risk, it could take no steps to manage or mitigate

it. On 24 December 2015, this risk crystallised.

2.8.
The Firm’s specific failings in relation to the IT Incident resulted from deeper flaws

in its governance of critical outsourced services and outsource service providers

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and a failure to take appropriate action when a similar IT failing occurred 20

months prior to the IT Incident. In particular:

(1)
Raphaels’ over-arching statements of its risk appetite and tolerance failed to

adequately articulate the appetite for and tolerance levels in relation to the

Firm’s use of outsourcing and, in particular, the outsourcing of critical services.

This failing prevented it from determining when its use of critical outsourcing

exceeded the level of risk it was willing and able to accept;

(2)
Raphaels’ contractual agreements with Card Programme Managers failed to

include appropriate service level agreements governing the provision of critical

outsourced services;

(3)
Raphaels had no process in place for identifying its critical outsourced services

and functions;

(4)
Raphaels’ business continuity and disaster recovery planning focussed only on

services performed directly by the Firm notwithstanding:


its
heavy
reliance
on
outsourced
services
and
the

interdependence between those services and the services it

performed; and


its
ultimate responsibility for
the effective
provision of

outsourced services.

(5)
Raphaels’ initial due diligence on Card Programme Managers and Card

Processors did not involve adequate consideration of business continuity

arrangements, and its ongoing monitoring of such arrangements was flawed;

and

(6)
Raphaels failed to respond appropriately when an IT incident occurred in April

2014 at the same Card Processor which was later the subject of the IT

Incident. If it had adequately investigated the April 2014 incident, it may have

been able to remedy the problems in the Card Processor’s business continuity

and disaster recovery arrangements that increased the impact of the IT

Incident.

2.9.
These flaws meant that, during the relevant period, the Firm was not in a position

properly to assess or monitor the business continuity and disaster recovery

arrangements for any of the critical services outsourced under its Card

Programmes, exposing it and its customers to risk.

2.10.
The Authority hereby imposes on Raphaels a financial penalty of £775,100

pursuant to section 206 of the Act for failing to comply with Principles 2 and 3, as

well as the applicable provisions of Chapter 8 of the Authority’s Senior

Management Arrangements, Systems and Controls sourcebook (“SYSC 8”).

2.11.
The Authority has investigated the Firm’s arrangements in respect of outsourced

services provided on behalf of the PSD and in particular in respect of the business

continuity and disaster recovery provision made by outsource service providers.

For the reasons explained in this Final Notice, the Authority considers that there

were failings in the Firm’s systems and controls in respect of outsourcing which

the Firm ought to have been on notice of from 18 April 2014. These failings

crystallised on the date of the IT Incident and continued until the end of 2016, by

which time the Firm had designed new outsourcing policies and outsourcing

procedures to remedy the failings. Accordingly, the “relevant period” for the

purposes of this Final Notice is from 18 April 2014 to 31 December 2016.

3.
DEFINITIONS

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

“the Act” means the Financial Services and Markets Act 2000 (as amended);

“the Authority” means the body corporate previously known as the Financial
Services Authority and renamed on 1 April 2013 as the Financial Conduct
Authority;

“BIN” means Bank Identification Number designated by the first few digits of a
payment card issued by a financial institution. Among other things, the number
is used to verify payment transactions made via a particular Card Payment
System;

“Card Agreement” means the formal contract between the Firm and a Card
Programme Manager setting out the obligations of each party;

“Card Payment System” means card systems such as Visa or MasterCard
responsible, amongst other things, for routing card payment authorisation and
settlement requests between merchant acquirers and issuing banks (e.g.
Raphaels);

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“Card Programme” means a prepaid card or charge card programme operated by
the Firm;

“Card Programme Manager” means an outsource service provider appointed by
the Firm under a Card Agreement to manage aspects of a Card Programme
including procuring a Card Processor, customer relationship management, product
marketing and ensuring sufficient funds are held in the accounts supporting the
Card Programme for daily settlement with the Card Payment Systems;

“Card Processor” means an outsource service provider appointed by a Card
Programme Manager and formally approved by the Firm to predominantly provide
IT services (including Payment Authorisation Services) in relation to a Card
Programme;

“Database Instance” means a set of memory structures that manages database
files. A database is a set of physical files where data is stored. A Database
Instance manages a single database’s stored data and serves the users of the
database;

“Executive Committee” means the Executive Committee of R. Raphael & Sons Plc;

“Handbook” means the Financial Conduct Authority Handbook;

“High Availability” means a quality of a system or component that assures a high
level of operational performance for a given period of time;

“Joint Operating Manual” means a manual agreed between the Firm and a Card
Programme
Manager
describing,
among
other
things,
the
operational
responsibilities of each party in relation to a Card Programme;

“Maximum Tolerable Downtime” and “MTD” means the time after which an
organisation’s viability could be irrevocably threatened if product and service
delivery cannot be resumed;

“outsourcing” means an arrangement of any form between a firm and a service
provider by which that service provider performs a process, a service or an activity
which would otherwise be undertaken by the firm itself;

“Outsourcing Policy” means the Firm’s General Outsourcing Policy;

“outsource service provider” means a third party which performs outsourcing
functions and services on behalf of a firm;

“PRA” means the Prudential Regulation Authority;

“PSD” means the Firm’s Payment Services Division;

“Payment Authorisation Services” means the real-time acceptance and processing
of incoming payment authorisation requests performed by a Card Processor;

“Raphaels” or “the Firm” means R. Raphael & Sons Plc;

“Recovery Time Objective” and “RTO” means the timeframe for restoring services
to a level where an organisation’s reputation or its financial condition is not too
seriously affected; and

“the Tribunal” means the Upper Tribunal (Tax and Chancery Chamber).

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4.
FACTS AND MATTERS

Outsourcing – Regulatory Expectations

4.1.
When carrying on its regulated activities, a firm may choose to outsource certain

functions and services to third parties.
Nevertheless, firms retain full

accountability for discharging their regulatory obligations and cannot delegate

them to other parties.

4.2.
During the relevant period, the Firm was required, when relying on a third party

for the performance of operational functions which were critical for the

performance of regulated activities on a continuous and satisfactory basis, to

ensure that it took reasonable steps to avoid undue additional operational risk.

For these purposes, an operational function is regarded as critical if (among other

things) a defect or failure in its performance would materially impair the

soundness or the continuity of its relevant services and activities. Therefore, to

determine whether a particular service or function was critical, the Firm was

required to consider the impact on its regulated activities if that service or function

was subject to disruption.

4.3.
Raphaels, one of the oldest UK independent retail banks, is authorised by the PRA

and jointly regulated by the Authority and PRA. The Firm has a number of

business divisions including Payment Services, Lending and Savings.

4.4.
Raphaels is a principal member of the Visa and Mastercard Card Payment Systems

and, through such membership, provides sponsorship for the issuance of prepaid

cards and charge cards.

4.5.
Raphaels’ prepaid cards can be used to make certain electronic payment

transactions. Unlike credit and debit cards, they are not linked to an underlying

credit facility or current account. Instead, Raphaels receives funds before issuing

e-money of an equivalent value onto the card.
Common examples of prepaid

cards include travel money cards, gift cards and payroll cards.

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4.6.
Similarly, Raphaels’ charge cards can also be used for electronic payment

transactions. A credit limit is granted by the Programme Manager which can then

be drawn upon by the card user.

4.7.
Raphaels provides companies and other organisations seeking to launch new

prepaid card or charge card programmes (“Card Programmes”) with access to

Card Payment Systems such as Visa or Mastercard.

4.8.
Raphaels’ responsibilities in relation to Card Programmes include registering the

programme with the Card Payment System, obtaining a Bank Identification

Number (“BIN”) from the relevant Card Payment System to enable payments to

be authorised, and continually managing the settlement of payment transactions

to the card payment system. For all relevant Card Programmes, the Firm has a

direct legal relationship with, and regulatory responsibility for, the cardholder.

4.9.
The Firm’s Payment Services Division (“PSD”) manages the Firm’s operational

responsibilities in relation to the Card Programmes. The PSD relies heavily on

outsource service providers to perform many of the services and functions which

are critical to the operation of the Card Programmes. These outsource service

providers primarily comprise Card Programme Managers and Card Processors.

4.10.
A Card Programme Manager’s obligations are set out in a formal contract with the

Firm (“Card Agreement”). These obligations include procuring a Card Processor,

customer relationship management,
product marketing
and
ensuring that

sufficient funds are held in the accounts supporting the Card Programme for daily

settlement with the Card Payment Systems. In addition, the Firm and the Card

Programme Manager agree a “Joint Operating Manual” setting out key operational

procedures.

4.11.
Provided the Firm has approved in writing the choice of Card Processor, the Card

Programme Manager and the Card Processor enter into a contract regarding the

provision of services by the Card Processor.
The services provided by a Card

Processor are detailed in both its contract with the Card Programme Manager and

the Card Agreement. They are predominantly IT services which include daily

transaction reporting, fraud management monitoring and Payment Authorisation

Services.

4.12.
The Firm enters into a “Compliance Agreement” with each Card Processor,

principally to ensure that the Firm can take control of a Card Programme should

the relevant Card Programme Manager become unresponsive. In particular, the

Compliance Agreement enables the Firm to instruct the Card Processor to decline

a specific transaction or set of transactions.

Critical Outsourcing - Appetite and Identification

4.13.
Whether considered individually or collectively, none of the procedure and policy

documents described in this Final Notice provided a process for identifying the

Firm’s “critical” outsourced services and functions. None of these documents

established an appropriate critical outsourcing risk appetite. As a result, the Firm

was unable to determine when its use of critical outsourcing exceeded the level

of risk it was willing and able to accept.

4.14.
The Firm’s approach to managing risk is governed by its Risk Management Policies

and Procedures (“RMPP”). A fundamental purpose of the RMPP is to assist staff

members with identifying and assessing risks. The RMPP identifies Raphaels’

Board as the ultimate decision-making body with responsibility for determining

the Firm’s overall risk appetite and tolerance levels.

4.15.
The Board articulates the risks and tolerance levels the Firm is willing to accept

through its Board Risk Appetite and Tolerance Statement (“BRATS”), intended to

provide a common framework for managing risk across the Firm. The Board bears

responsibility for the effective management of all risks to which the Firm is

exposed.

4.16.
Both the Board and Executive Committee play important roles in the overarching

governance and risk management of Raphaels’ outsourcing arrangements. These

include: approving outsourcing relationships the Firm proposes to enter into;

assessing management information on the Firm’s ongoing monitoring of outsource

service providers; and reviewing key policies governing the Firm’s use of

outsourcing.

4.17.
At the time of the IT Incident, the RMPP explicitly identified “Outsourcing” as one

of four principal risks for which the Firm needed to hold capital. However,

outsourcing risk was not specifically identified in the BRATS. The Firm’s approach

was to articulate outsourcing risk as a category of operational risk. However, the

Board’s description of operational risk within the BRATS did not explicitly refer to

risks of outsourcing (including critical outsourcing) nor the use of outsource

service providers. Instead, outsourcing risk and the tolerance levels accepted by

the Firm for specific outsourcing risks were impliedly captured by general

references to preventing “operational losses” and “compliance failures”.

4.18.
The BRATS referred to only one specific outsourcing risk: namely, the

concentration risk of one Card Programme Manager contributing more than 25%

of the Payment Services Division’s gross profit (i.e. a risk to profitability).

4.19.
The BRATS referenced “IT Risk”, noting that a business continuity and disaster

recovery plan had to be in place and up to date, with hardware and software

maintained at levels consistent with those required for the Firm to meet its

objectives. However, this related solely to the Firm’s internal IT processes and

had no relation to the business continuity and disaster recovery plans of its

outsourced service providers.

4.20.
Separately from the BRATS, the Firm’s business divisions produce separate

Divisional Risk Appetite and Tolerance Statements (“DRATS”). The DRATS are

intended to provide more detail about the risks to each business division and their

corresponding tolerance levels. The RMPP provided for the DRATS to be reviewed

at least every six months by the Executive Committee and annually by the Board.

4.21.
The PSD had a DRATS throughout the relevant period (the “PSD DRATS”). The

PSD DRATS included some specific risks associated with outsourcing. However,

like the BRATS, the PSD DRATS did not address the PSD’s overall appetite for

outsourcing critical services. Likewise, reference within the PSD DRATS to

business continuity as a risk concerned the PSD’s testing and remediation of its

own business continuity plan and not the arrangements at outsourced service

providers.

4.22.
The Firm has had a documented “General Outsourcing Policy” in place since

January 2012 (the “Outsourcing Policy”). The version in force at the time of the

IT Incident was dated December 2014. The Outsourcing Policy described itself as

a “master framework” intended to guide the drafting of all outsourcing

agreements. The policy was approved by both the Board and Executive

Committee.

4.23.
The Outsourcing Policy listed the general outsourcing requirements under SYSC

8, stating a need to “understand fully the implications involved” and “ensure and

control any outsource agreement in the manner prescribed by the Regulator”.

The Outsourcing Policy required all staff to “take regard of” and apply the SYSC 8

rules in their dealings with third parties.

4.24.
The Outsourcing Policy emphasised the need for the Firm to monitor the

performance of outsource service providers through “comprehensive Service

Level Agreements”. Failure or lapse in an outsourced service would need to be

corrected within an “agreed and reasonable timescale” given the “urgency and

importance of the service as dictated in the Service Level Agreement”.

4.25.
However, other than reciting the general outsourcing requirements, the

Outsourcing Policy provided no guidance for Raphaels staff on how to apply the

requirements in practice. In particular, it provided no guidance on how to identify

critical outsourced services, including how they could be distinguished from non-

critical services.

4.26.
The Outsourcing Policy referred to specific intra-group outsourced functions and

services (i.e. functions and services outsourced to other entities in the same

corporate group as the Firm) which required service level agreements (such as

HR recruitment and commercial marketing services). However, the Outsourcing

Policy did not provide equivalent guidance on which external outsourced functions

or services required service level agreements.

4.27.
None of the Firm’s Card Agreements with its Card Programme Managers included

comprehensive service level agreements
expressly required under the

Outsourcing Policy. In particular, the Card Agreements did not include service

levels for all critical outsourced services required to operate a Card Programme.

4.28.
The separate contracts agreed between the Card Programme Manager and the

Card Processor did, however, contain service level agreements relating to the

provision of certain critical outsourced services. However, Raphaels had no

involvement in setting or approving these. As a result, certain service levels

agreed between the Card Programme Managers and the Card Processor did not

align with the Firm’s requirements.

Critical Outsourcing – Business Continuity and Disaster Recovery

The Card Agreements

4.29.
All Card Agreements in force at the time of the IT Incident required both the Firm

and the relevant Card Programme Manager to each maintain a written business

continuity plan to be made available to the other “upon request from time to

time”. Each business continuity plan was required, at all times, to include a “time

frame for recovering critical business functions”.

4.30.
Under the Card Agreements, each party was also required to ensure that its “key

suppliers” maintained their own business continuity plans. The suitability or

parameters of the business continuity plans were not stipulated. The business

continuity plans maintained by Card Processors were to be made available to the

Firm for inspection upon request.

4.31.
The Card Agreements did not require the business continuity and recovery

arrangements of Card Programme Managers and Card Processors to align with or

meet the Firm’s requirements.

4.32.
Each Card Agreement set out the essential services that the Card Programme

Manager was to procure that the Card Processor would provide “on a timely basis”.

These included, among others, Payment Authorisation Services and the “provision

of production & disaster recovery data centres”. Specifically, they required:

(1) the production environment to be “fully resilient” and with “no single point of

failure”;

(2) a “disaster recovery site” to be in place which was annually tested and

replicated the production data centre;

(3) a “business continuity plan” to be in place; and

(4) that services could be recovered within “4 hours”.

The Firm’s continuity and recovery arrangements for critical outsourced

services

4.33.
At the time of the IT incident, Raphaels had in place a central business continuity

plan (the “Raphaels BCP”). The Raphaels BCP was reviewed by the Board and

Executive Committee. Its principal purpose was to provide clear instructions to

staff to enable continuity of service to the Firm’s customers and suppliers. It

described the types of disruptive incident which required its invocation, the

procedures to be followed by staff and the locations of alternative disaster

recovery sites.

4.34.
The Raphaels’ BCP required risk assessments for each of its “business lines and

major operating functions” and that each of its operating divisions maintain

separate business continuity plans. Each operating division was required to

undertake a business impact analysis (“BIA”) at least annually. The BIA was

intended to identify and document the key risks to business continuity within the

division. As part of formulating the BIA, each division was required to specify

appropriate Recovery Time Objectives (RTOs) and Maximum Tolerable Downtimes

(MTDs) for its “critical functions”. A Recovery Time Objective is the timeframe for

restoring services to a level where the Firm’s reputation or its financial condition

is not too seriously affected. Maximum Tolerable Downtime is the time after which

the Firm’s viability could be irrevocably threatened if product and service delivery

cannot be resumed.

4.35.
The Raphaels BCP required each of its operating divisions to identify “its key

business partners” and to “document appropriate contact details in its own BCP”.

In the case of “Outsourcing Partners”, each contract was required to include

specific sections on business continuity and disaster recovery. The contract

required written confirmation from the outsource service provider that an “up-to-

date, fully documented and tested” business continuity plan was in place.

However, the Raphaels BCP did not stipulate that the business continuity plans of

outsourced service providers had to adhere to certain minimum levels. Nor did it

provide for the Firm to approve the adequacy of those plans or ensure they were

linked to the PSD’s RTO or MTD figures.

The Third Party Business Continuity Management Questionnaire

4.36.
The Raphaels BCP appended a “Third Party Business Continuity Management

Questionnaire” (the “BCP Questionnaire”) designed to assess the adequacy of the

business continuity plans of key outsource service providers. The BCP

Questionnaire sought details including the timeframe for recovery of services

provided to the Firm and the mitigation strategies in place to prevent disruption

to services. However, the Raphaels BCP noted that not all suppliers and

outsourced providers would be willing to complete the BCP Questionnaire. In

those circumstances, how a division (e.g. the PSD) obtained the information was

stated in the Raphaels BCP to be at the discretion of management.

4.37.
The BCP Questionnaire did not seek any details of the relevant arrangements of

sub-contractors (e.g. Card Processors) providing critical services to the Firm, and

sub-contractors were not expected to respond to the questionnaire. In addition,

certain questions sought only “examples” of procedures for managing service

disruptions rather than all procedures covering the key services provided for the

Firm.

4.38.
Raphaels did not provide any guidance or training for those reviewing responses

to the BCP Questionnaire and any supporting evidence provided. Moreover,

despite the heavy reliance on providers’ technology for the supply of many key

services, the Firm had no process for undertaking an informed assessment of the

technological aspects of the BCP Questionnaire.

4.39.
The BCP Questionnaire contained important questions concerning business

continuity and recovery for outsource services. However, it was not completed

by all directly contracting outsource service providers (e.g. Card Programme

Managers) notwithstanding the criticality of the services they performed on behalf

of the Firm. The BCP Questionnaire was not completed by any of the Card

Programme Managers impacted by the IT Incident.

The Payment Services Division’s Business Continuity Plan

4.40.
The PSD maintained a separate business continuity plan (the “PSD BCP”). This

detailed the specific actions the PSD would take to minimise the impact of a major

disruption to its normal day-to-day operations. As required by the Raphaels BCP,

the PSD BCP included a BIA assessment (including relevant RTO and MTD levels)

of its key systems and functions. However, this only considered internal systems

and functions, and did not include consideration of any outsourced functions.

4.41.
The PSD BCP expressly noted that it did not seek to address all of the possible

business continuity planning scenarios that the PSD or its suppliers may

experience. The PSD BCP stated this was “covered in part” by the PSD requiring

all Card Programme Managers to have a BCP open for inspection and less than

one year old; the Joint Operating Manuals detailing operating procedures; and by

using major blue-chip technology providers for its major programmes.

4.42.
Neither the Raphaels BCP nor PSD BCP contained any actions or procedures

relating to the continuity and recovery of outsourced services and functions during

a disruptive incident. Only services performed directly by the Firm were

considered in the plans, notwithstanding the dependency placed on outsourced

services and any impact that disruption to those services could have on Raphaels

and its customers.

4.43.
The PSD BCP did not in fact address any possible business continuity scenarios

that its outsource service providers might experience. The PSD BCP contained no

procedures for what, when and by whom communications with outsource service

providers would take place in the event of an incident.

4.44.
Although the Joint Operating Manuals described the services, including critical

outsourced services, required for the operation of a Card Programme, they

provided no details of how the continuity of such services would be maintained in

the event of disruption. In particular, the Joint Operating Manuals gave no details

of the recovery timeframes, available workarounds, minimum acceptable service

levels or communication procedures required to manage disruption to outsourced

services. Accordingly, the PSD BCP was wrong to describe the Joint Operating

Manuals as covering – whether in part or in any way at all – any of the possible

business continuity planning scenarios that the PSD or its suppliers might

experience.

4.45.
The absence of any outsourced services or functions from the business continuity

plans also meant that such services and functions were not included within the

PSD’s BIA. Therefore, Raphaels undertook no assessment of the impact which

disruption to these services or functions might have on it and its customers.

Furthermore, it undertook no criticality assessment of the relative importance of

these services and functions (including the assignment of appropriate RTO and

MTD levels) to the business of the PSD.

Assessment of outsourced service business continuity and disaster recovery

arrangements

i.
Initial Due Diligence

4.46.
From March 2012, the Firm’s process for appointing a Card Programme Manager

required the prospective Card Programme Manager to submit an initial due

diligence form to the PSD’s Business Development team. Among other things, the

form requested a copy of an up to date business continuity plan and details of

when it was last tested. The Business Development team and the PSD’s first line

compliance team shared responsibility for reviewing the form.

4.47.
Each of the Card Programme Managers impacted by the IT Incident underwent an

initial due diligence exercise prior to the launch of their Card Programmes. As

part of this, the PSD assessed two of the three Card Programme Managers’

business continuity plans. However, both reviews were high-level, providing little

indication of which continuity and recovery arrangements were assessed or how

they satisfied the Firm and PSD’s requirements.

4.48.
For the third Card Programme Manager, there was no initial review of business

continuity or recovery arrangements. Had it undertaken such a review, the Firm

would have identified that the business continuity plan contained no “time frame

for recovering critical business functions” as required by the relevant Card

Agreement.

4.49.
The PSD undertook a separate initial due diligence exercise before entering into a

relationship with a Card Processor. There was no written policy or guidance as to

what information to request from a potential Card Processor. In practice, the Firm

sought to obtain similar information to that requested from prospective Card

Programme Managers. The absence of a written policy meant there was no formal

requirement to initially assess a Card Processor’s business continuity and disaster

recovery arrangements.

4.50.
In 2014, prior to the launch of one of the Card Programmes, the PSD undertook

an informal review of the business continuity plan of the Card Processor which

was later subject to the IT Incident. The reviewer identified several “issues”,

including that the plan was over a year old and that the Card Processor’s BIA was

not made available. Significantly, the reviewer also noted that the plan could not

be invoked for “day to day system failure” and that this gave “some cause for

concern”. The Authority has seen no evidence indicating that this concern was

followed up prior to the IT Incident.

ii.
Ongoing Monitoring

4.51.
Once a Card Programme had launched, the PSD would conduct ongoing due

diligence of the Card Programme Manager by having it submit an annual due

diligence form. The form did not seek details of the current business continuity

and recovery arrangements of a Card Programme Manager or those parties to

which it had sub-contracted services.

4.52.
The annual form was not sent to, nor did it mention, Card Processors. Instead,

Raphaels relied on its Card Programme Managers to conduct ongoing due

diligence of Card Processor(s). The Firm did not stipulate in any of its contractual

arrangements with Card Programme Managers any parameters as to how this due

diligence should be undertaken.

4.53.
The PSD also conducted outsource monitoring reviews (“monitoring reviews”) of

its Card Programme Managers in accordance with its “Outsource Monitoring

4.54.
The monitoring reviews were intended, among other things, to ascertain the

extent to which each Card Programme Manager adhered to its policies and

procedures and complied with regulatory requirements. Whilst the Outsource

Monitoring Procedures did not specify any particular regulatory requirements,

certain monitoring reports included some consideration of compliance with SYSC

4.55.
The Firm had initially intended for a monitoring review of each Card Programme

Manager to be completed annually. In practice, however, the Firm sought to

concentrate on the Card Programme Managers considered to pose the greatest

risk to the PSD and the Firm. Accordingly, the PSD carried out an initial risk

assessment of the Card Programme Managers to determine when each review

would take place.
The
assessment considered the products, processes,

jurisdiction of operation and past performance of the Card Programme Manager.

4.56.
However, the assessment did not seek to identify whether any of the services

provided by or on behalf of the Card Programme Manager constituted critical

outsourcing under SYSC 8. Moreover, resourcing constraints within the PSD

prevented certain Card Programme Managers from receiving a monitoring review

as scheduled.

4.57.
Consequently, the PSD could not ensure that all Card Programme Managers

providing or otherwise responsible for critical outsourced services, received a

timely monitoring review.

4.58.
The PSD’s Outsource Monitoring Procedures expressly mentioned business

continuity management as a potential review area. In addition, the agenda

template used to formulate the specific agenda for each monitoring review

included reference to “BCP” and “BCP Results”. However, beyond these

references, the procedures gave no guidance or criteria for how to assess business

continuity plans and their test results. This is because the PSD had no such

guidance in place.

4.59.
The absence of any guidance or criteria meant that business continuity plans were

not reviewed against clear requirements set by the Firm, including the recovery

objectives set out in the PSD’s BIA. This created a risk that recovery timeframes

set by critical outsource service providers were not aligned with the Firm’s

requirements. In some instances, no review of business continuity, resilience or

disaster recovery planning had taken place during the monitoring review, despite

the Card Programme Managers being responsible for the provision of critical

outsourced services.

4.60.
In the year preceding the IT Incident, two of the three impacted Card Programme

Managers received a monitoring review (the other Card Programme Manager was

last reviewed in June 2014). Each review included a desk-based review of policy

and procedure documents. However, neither review considered or reported on the

Card Programme Managers’ business continuity and recovery arrangements.

Furthermore, no business continuity plans or disaster recovery plans were

included in the desk-based document reviews. The monitoring review report for

each visit identified that the Card Programme Managers were not adequately

monitoring the activities of the Card Processor.

4.61.
There was no review of the Card Programme Managers’ business continuity plans

in the year prior to the IT Incident. Consequently, the Firm was not aware that

two of the Card Programme Managers’ plans had not been updated since 2012

and 2013 respectively, contravening the requirement that “BCPs should be less

than 1 year old”.

4.62.
The Card Programme Managers were contractually required to ensure that the

Card Processor maintained a business continuity plan (although there was no

requirement as to the form this should take or what it should contain). The Firm

also relied on the Card Programme Managers to ensure that testing of the Card

Processor’s disaster recovery plan had been carried out. However, the Outsource

Monitoring Procedures made no provision for how to assess whether the Card

Programme Manager had satisfied these requirements.

iii.
Operational reviews

4.63.
Prior to the IT Incident, the PSD had begun conducting annual “operational

reviews” of its Card Programme Managers. These reviews looked at various

operational activities integral to a Card Programme, such as card transaction

reconciliation and account management.

4.64.
In 2014, the PSD’s procedure for conducting operational reviews highlighted the

need to identify all business continuity plans supporting a Card Programme and

how the Card Programme Manager reviewed the plans of their sub-contractors

(e.g. Card Processors). However, the procedures gave no guidance on whether,

how and against what criteria this information needed to be evaluated.

4.65.
Between 9 June to 25 July 2015, the Firm’s Compliance function carried out a

review of the PSD’s management of its outsourcing arrangements. The review

culminated in a report issued by Compliance in September 2015. Compliance

found that the PSD was not tracking Card Programme Managers’ testing of their

business continuity plans to ensure they remained fit for purpose. Compliance

also found that the PSD were not testing how Card Programme Managers

maintained oversight of sub-contractor business continuity plans. Its report noted

that the PSD would incorporate these requirements into its operational reviews.

4.66.
Prior to October 2015, the PSD tested its new approach to operational reviews on

the main Card Programme Manager impacted by the IT Incident. However, the

approach appears to have provided for only a limited inquiry into the Card

Programme Manager’s business continuity planning arrangements and prompted

no changes to those arrangements. At the time of the IT Incident, the Card

Programme Manager’s business continuity plan was over two years old and

contained no time frame for recovering critical business functions.

The Initial IT Incident

4.67.
On 18 April 2014, a “major incident” occurred with the Card Processor’s systems

supporting the Payment Authorisation Services provided to the Firm (the “Initial

IT Incident”).

4.68.
Significantly, the Card Processor’s description of the Initial IT Incident explained

that:

(1)
a weakness existed within the Card Processor’s ‘high availability’ setup

preventing its IT system from continuing to operate in the event of disruption;

(2)
the duration of the incident was extended due to the Card Processor having

to manually restart its IT system;

(3)
the “normal” incident management and communication processes had not

been executed properly by the Card Processor; and

(4)
the incident impacted 57 customers across two of the Firm’s Card Programmes

(the same two Card Programmes were also impacted by the IT Incident).

4.69.
The Card Processor reported that the Initial IT Incident was an “unexpected

eventuality” and that it had been addressed. However, Raphaels appears to have

taken no steps to investigate its underlying cause nor to review the adequacy of

the Card Processor’s business continuity and disaster recovery arrangements to

manage similar future incidents. Moreover, the Firm did not seek to ascertain the

impact of the incident on its 57 customers.

4.70.
Following the Initial IT Incident, the Firm and Card Processor agreed to hold a

monthly meeting to discuss service provision, negative experience and reporting

measures.

4.71.
In the month following the Initial IT Incident, the Firm met with the Card

Processor. At that meeting, the Card Processor explained that a “client alert

system” had been created to notify clients (including the Firm) of future incidents.

The Card Processor explained that its staff were “actively monitoring” for such

incidents and that notification would be made by email or SMS. No further

remedial steps were taken.

4.72.
In July 2014, the Authority published “Considerations for firms thinking of using

third-party technology (off-the-shelf) banking solutions”. This publication raised

concerns about firms’ arrangements for outsourced service resilience, disaster

recovery and business continuity planning, including the need for alignment

between such arrangements.

The IT Incident

4.73.
During the early hours of 24 December 2015, a technology incident occurred at

the same Card Processor resulting in the “complete failure” of the services it

provided to the Firm for three Card Programmes (the “IT Incident”). The services

affected by the IT Incident included the Card Processor’s provision of Payment

4.74.
The IT Incident lasted for over eight hours and resulted in 3,367 of the Firm’s

customers being unable to use their prepaid cards and charge cards. Over the

course of that period, 5,356 customer card transactions attempted at point of sale

terminals, ATM machines and online (worth an aggregated value of £558,400)

could not be authorised by the Card Processor and were consequently declined.

The IT Incident also prevented customers from viewing their contemporaneous

card balances using the Card Processor’s online portal. In addition, certain

services utilised by the Firm and its Card Programme Managers to manage cards

were disabled until the IT Incident was resolved.

4.75.
The root cause of the IT Incident was a malfunctioning of two out of seven

Database Instances located at the Card Processor’s production data centre. The

two Database Instances managed the customer and transaction data required for

the provision of Payment Authorisation Services.

4.76.
The Database Instances were intended to provide high availability, thereby

ensuring the continuous provision of Payment Authorisation Services. However,

the nature of the IT Incident was such that the high availability of the two

Database Instances was compromised, resulting in all services associated with

them (including Payment Authorisation Services) being brought to a halt.

4.77.
The Card Processor’s disaster recovery system, which would have enabled

Payment Authorisation Services to be resumed from a secondary data centre,

could not be initiated. This was because the Card Processor’s disaster recovery

plan assumed that all seven Database Instances had to be down (i.e. a complete

data centre failure) before the disaster recovery system could be initiated. This

left the Card Processor with no other option but to manually create a “standby

system” in order to restore Payment Authorisation Services. This task took over

seven hours to complete, which breached the Firm’s objective that Payment

Authorisation Services should recover within four hours.

4.78.
Raphaels was not aware that the provision of Payment Authorisation Services to

its customers was supported by only two of the Card Processor’s seven Database

Instances. Therefore, the Firm did not know that Payment Authorisation Services

could be disrupted when only those two Database Instances had malfunctioned.

4.79.
As a result of the Initial IT Incident in 2014, the Firm was or should have been

aware that even a partial disruption to the Card Processor’s high availability setup

could impact the supply of Payment Authorisation Services. The Firm was also

already on notice that the Card Processor’s business continuity plan would not be

invoked for day-to-day system failure.

4.80.
However, neither the Firm nor the Card Processor had conducted a business

continuity or disaster recovery test in circumstances where only some Database

Instances were unavailable. As a result, no formal workarounds or contingency

plans were in place to deal with a disruption of this nature.

4.81.
Moreover, the Card Processor had no effective procedures for communicating with

the Firm or the Card Programme Managers in the event of a disruption to its

services. The incident started at 04:22am (GMT) but the Firm was not made

aware of the disruption and consequent impact on its customers before 09:00am

(GMT). Had the Firm been alerted earlier, it could have taken steps to mitigate

the impact of the IT Incident on customers sooner.

4.82.
Following the Initial IT Incident in 2014, the Card Processor had implemented an

alert system to notify clients of disruption via email or SMS. However, the alert

system was also disabled by the malfunctioning of the two Database Instances.

4.83.
Following internal discussions, the Card Processor decided to notify the impacted

Card Programme Managers. This notification was made by the Card Processor’s

Operations team at 07:15am (GMT). The Firm was not included in the notification

and was subsequently informed by two of the Card Programme Managers at

4.84.
Of the three Card Programmes affected by the IT Incident, the greatest impact

was borne by a prepaid Card Programme issued predominantly to seasonal

workers to provide their weekly wages. On the day of the incident,

communications from a total of 1,121 customers were received, the vast majority

of which related to incident. These communications included complaints from

customers who were unable to withdraw money, pay their bills or use their prepaid

cards for Christmas shopping.

4.85.
At 09:25am, following discussions with the Firm, the Card Programme Manager

placed a notification on its website explaining the incident had occurred and was

preventing customers from using their cards. The notification stated that a

customer services team was in place to handle customer calls.

4.86.
Customers who contacted customer services were offered the option to access up

to £250 via an alternative bank account. To facilitate this, the Card Programme

Manager asked the Firm to release funds from its own account with the Firm. The

Card Programme Manager also sent text messages to customers to update them

on the disruption. Following resolution of the incident, the Card Programme

Manager sent a further text message to customers confirming that services had

been restored.

4.87.
These were impromptu measures initiated by the Card Programme Manager and

approved by Raphaels. They were not part of any formal business continuity or

disaster recovery plan.

Actions taken by Raphaels following the IT Incident

4.88.
Immediately following the IT Incident, the Firm requested the Card Processor to

produce a full incident report identifying the root cause of the incident, the

corrective action required to minimise the likelihood of it happening in future and

the key lessons learned. Remedial action taken by the Card Processor included

procuring additional hardware to bolster the high availability of its Database

Instances and implementing a new communications plan to better manage future

incidents.

4.89.
However, the Firm did not seek to investigate whether customers of the three

impacted Card Programmes suffered any detriment. Consequently, no redress

was offered to those customers notwithstanding any loss, inconvenience or

distress they experienced due to the IT Incident.

4.90.
In early 2016, the Firm commissioned an external firm to assess its outsourcing

governance arrangements and, separately, its resilience and disaster recovery

arrangements, against the applicable regulatory requirements in the Authority’s

Handbook and the PRA Rulebook. The assessments focused on outsourcing by

4.91.
The external firm’s findings and corresponding recommendations were set out in

two reports, both dated 30 June 2016. The reports identified a number of areas

where the PSD’s management of outsourcing risk was deficient, recommending

significant enhancements to achieve regulatory compliance. In particular, the

external firm identified gaps and weaknesses in the PSD’s “contingency and

business continuity planning” in relation to outsourced services.

4.92.
In response to the reports, the Firm implemented an outsourcing remediation

plan. The purpose of the remediation plan was to design and implement a new

governance and controls model to address the shortcomings in the Firm’s

outsourcing arrangements. The design phase of this plan was completed at the

end of 2016, with implementation beginning in January 2017. Through the

remediation plan, a number of significant changes have been made to the Firm’s

outsourcing framework, foremost among them:

i.
identifying outsourcing risk as a standalone risk in the BRATS;

ii.
the introduction of new end-to-end outsourcing procedures for managing

the risks to its critical outsourced services;

iii.
revised due diligence procedures for Card Programme Managers to ensure

a more comprehensive and holistic assessment is undertaken;

iv.
enhancements to the assessment and management of the business

continuity plans for critical outsource service providers; and

v.
the allocation of first-line responsibility for the Firm’s outsourcing to a

Senior Management Function (SMF) holder.

4.93.
In April 2017, the Authority required Raphaels to appoint a Skilled Person to

assess whether the Firm was compliant with the Authority’s outsourcing rules.

The Skilled Person’s assessment considered outsourcing activity across the Firm

and was carried out in two phases. The Skilled Person collated its findings from

both phases in a final report issued in December 2017. The report concluded that

Raphaels’ design and execution of its outsourcing systems and controls broadly

enabled the Firm to comply with applicable regulations.

5.
FAILINGS

5.1.
The regulatory provisions relevant to this Final Notice are referred to in Annex A.

5.2.
Based on the facts and matters above, the Authority considers that Raphaels

breached Principle 3 and associated provisions of SYSC 8, and Principle 2, as

explained below.

Breach of Principle 3 and SYSC 8

5.3.
Principle 3 requires that a firm take reasonable steps to ensure that it has

organised its affairs responsibly and effectively, with adequate risk management

systems. During the relevant period, SYSC 8.1.1R required Raphaels, when

relying on a third party for the performance of functions which were critical for

the performance of regulated activities on a continuous and satisfactory basis, to

ensure that it took reasonable steps to avoid undue additional operational risk.

5.4.
During the relevant period, Raphaels breached Principle 3 and SYSC 8.1.1R

because its systems and controls failed to enable it properly to identify when it

was relying on outsourcers for the performance of functions that were critical for

the performance of its regulated activities (in particular, the provision of e-money)

on a continuous and satisfactory basis. It was unable to ensure it took reasonable

steps to avoid undue additional operational risk, and its risk management systems

were therefore inadequate. The facts and matters that caused these failings were

as follows:

(1)
Raphaels’ BRATS and the PSD DRATS failed to adequately articulate the

appetite for and tolerance levels in relation to the Firm’s use of outsourcing

and, in particular, the outsourcing of critical services. The absence of a clearly

defined outsourcing risk appetite meant the Firm could not determine when

its use of outsourcing exceeded the level of risk it was prepared to tolerate.

This was particularly relevant given the Firm had outsourced numerous

services and functions which were critical to its activities.

(2)
Raphaels’ Outsourcing Policy offered no guidance to staff on how to identify

critical outsourced services, including how they were to be distinguished from

non-critical services. As a result, the contractual arrangements with Card

Programme Managers failed to include appropriate service level agreements,

and those service level agreements that were in place between Card

Programme Managers and Card Processors were not aligned with Raphaels’

own requirements.

(3)
The Raphaels’ BCP and PSD BCP did not address business continuity in relation

to outsourced services. This meant that there was no business impact analysis

in relation to outsourced, or critical outsourced, services. In addition, there

was no adequate process for obtaining information about business continuity

and disaster recovery arrangements at Card Programme Managers and Card

Processors. Moreover, PSD staff responsible for assessing such information

on an ongoing basis received no specific training on how to assess such

information.

(4)
Raphaels’ processes for initial due diligence of Card Programme Managers and

Card Processors involved inadequate consideration of their business continuity

and disaster recovery arrangements, and there was not even a policy on what

information about these should be obtained from Card Processors.

(5)
Raphaels did not subject Card Processors to operational reviews, monitoring

reviews or require them to complete annual due diligence forms. The Firm was

therefore almost entirely dependent on Card Programme Managers to identify

and manage outsourcing risks related to Card Processors. However, the Firm

failed to adequately articulate its expectations of Card Programme Managers

in performing this role, for example by specifying what annual due diligence

should be carried out. The Firm therefore failed to ensure that Card

Programme Managers properly supervised the carrying out of the functions

outsourced to Card Processors and adequately managed the risks associated

with the outsourcing.

(6)
The Firm’s monitoring arrangements for Card Programme Managers did not

require it to give adequate consideration to business continuity matters, and

no adequate guidance was provided to the Firm’s staff for any ongoing

monitoring review which did consider such matters. As a result, the business

continuity plans of Card Programme Managers were not reviewed against clear

requirements of the Firm, creating a risk that they would not align with the

Firm’s requirements. Raphaels’ risk-based assessment of when monitoring

reviews should take place took no account of the criticality of the outsourced

services. Resourcing constraints meant that it failed to conduct the reviews its

flawed assessment process had identified it should on a timely basis.

(7)
Raphaels’ “operational reviews” made inadequate inquiry into the business

continuity arrangements of Card Programme Managers and took inadequate

account of arrangements at the Card Processor.

5.5.
Raphaels’ failings created a risk that those outsourcers carrying out services on

its behalf that were critical to the PSD’s regulated activities would not have

adequate arrangements in place to deal with interruptions to their business. That

risk crystallised when the IT Incident occurred. However, the failings were of a

wider significance, because the risk applied across all of the Card Programme

Managers and Card Processors on which the PSD relied.

5.6.
Principle 2 requires that a firm must conduct its business with due skill, care and

diligence.

5.7.
Raphaels breached Principle 2 by failing to take proper steps in response to the

Initial IT Incident to investigate its underlying cause and the impact on its

customers. Furthermore, the Firm appears to have taken no steps to review the

adequacy of the Card Processor’s business continuity and disaster recovery

arrangements to manage similar future incidents. Had Raphaels taken such steps,

it may have identified, and remedied, the problems with the Card Processor’s

arrangements that contributed to the impact of the IT Incident.

6.
SANCTION

Financial penalty

6.1.
The Authority’s policy for imposing a financial penalty is set out in Chapter 6 of

DEPP. In respect of conduct occurring on or after 6 March 2010, the Authority

applies a five-step framework to determine the appropriate level of financial

penalty. DEPP 6.5A sets out the details of the five-step framework that applies in

respect of financial penalties imposed on firms. The Authority considers it

appropriate to consider the penalty for all the breaches as a whole.

Step 1: disgorgement

6.2.
Pursuant to DEPP 6.5A.1G, at Step 1 the Authority seeks to deprive a firm of the

financial benefit derived directly from the breach where it is practicable to quantify

this.

6.3.
The Authority has not identified any financial benefit that Raphaels derived directly

from its breach.

6.4.
Step 1 is therefore £0.

Step 2: the seriousness of the breach

6.5.
Pursuant to DEPP 6.5A.2G, at Step 2 the Authority determines a figure that

reflects the seriousness of the breach. Where the amount of revenue generated

by a firm from a particular product line or business area is indicative of the harm

or potential harm that its breach may cause, that figure will be based on a

percentage of the firm’s revenue from the relevant products or business area.

6.6.
The Authority considers that the revenue generated by Raphaels is indicative of

the harm or potential harm caused by its breach. The Authority has therefore

determined a figure based on a percentage of Raphaels’ relevant revenue.

Raphaels’ relevant revenue is the revenue derived by Raphaels during the period

18 April 2014 to 31 December 2016 in respect of all Card Programmes. The

Authority considers Raphaels’ relevant revenue for this period to be £9,629,689.

6.7.
In deciding on the percentage of the relevant revenue that forms the basis of the

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

a percentage between 0% and 20%. This range is divided into five fixed levels

which represent, on a sliding scale, the seriousness of the breach; the more

serious the breach, the higher the level. For penalties imposed on firms there are

the following five levels:

Level 1 – 0%

Level 2 – 5%

Level 3 – 10%

Level 5 – 20%

6.8.
In assessing the seriousness level, the Authority takes into account various factors

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

deliberately or recklessly. The factors that the Authority considers to be relevant

to the Firm’s breaches are set out below.

Impact of the breach

6.9.
All of the Firm’s card users were exposed to the risk created by the breach.

6.10.
The IT Incident lasted for over eight hours and resulted in 3,367 of Raphaels’

customers (many of whom had little or no recourse to alternative funds) being

unable to use their pre-paid or charge cards when they attempted to. In total,

5,356 customer card transactions attempted at point of sale terminals, ATM

machines and online (worth an aggregated value of £558,400) could not be

authorised and were consequently declined.

6.11.
Although the Firm has not identified any financial loss, the IT Incident caused

distress and inconvenience to many customers. On the day of the incident,

communications from a total of 1,121 customers were received, the vast majority

of which related to the incident, including customers complaining that they had

not been able to withdraw money, pay their bills or make purchases. The IT

Incident occurred on Christmas Eve thereby compounding the distress suffered

by those customers.

6.12.
The most substantial Card Programme that was affected by the IT Incident was

provided primarily to seasonal workers who depended on their cards to receive

their wages, and were likely to include vulnerable customers.

Nature of the breach

6.13.
The breach revealed serious systemic weaknesses in the Firm’s governance of

critical outsourced services and outsource service providers.

Level of seriousness

6.14.
DEPP 6.5A.2G(11) lists factors likely to be considered ‘level 4 or 5 factors’. Of

these, the Authority considers the following factor to be relevant:

a) The breach revealed serious systemic weaknesses in the Firm’s governance

of critical outsourced services and outsource service providers.

6.15.
DEPP 6.5A.2G(12) lists factors likely to be considered ‘level 1, 2 or 3 factors’. Of

these, the Authority considers the following factors to be relevant:

a) Little, or no, profits were made or losses avoided as a result of the breach,

either directly or indirectly;

b) there was no, or limited, actual or potential effect on the orderliness of, or

confidence in, markets as a result of the breach; and

c)
The breach was committed negligently or inadvertently.

30

6.16.
Taking all of these factors into account, the Authority considers the seriousness

of the breach to be level 3 and so the Step 2 figure is 10% of £9,629,689.

6.17.
Step 2 is therefore £962,969.

Step 3: mitigating and aggravating factors

6.18.
Pursuant to DEPP 6.5A.3G, at Step 3 the Authority may increase or decrease the

amount of the financial penalty arrived at after Step 2, but not including any

amount to be disgorged as set out in Step 1, to take into account factors which

aggravate or mitigate the breach.

6.19.
The Authority considers that the following factors aggravate the breach:

a) Raphaels should have been on notice of the importance of properly

overseeing its critical outsourcing arrangements. On 12 November 2015,

the PRA imposed a financial penalty of £1,278,165 on the Firm for failing to,

among other things, manage and oversee the risks associated with

outsourcing important operational functions between 18 December 2006

and 1 April 2014.

b) In July 2014, prior to the IT Incident, the Authority
published

“Considerations for firms thinking of using third-party technology (off-the-

shelf) banking solutions”. This publication raised relevant concerns around

firms’ arrangements for outsourced service resilience, disaster recovery and

business continuity planning (including the need for alignment between such

arrangements).

c)
Although Raphaels helped facilitate access to alternate funds, during the IT

Incident this was only communicated to customers who called the customer

services team. Raphaels did not seek to investigate whether customers of

the three impacted Card Programmes suffered any detriment as a result of

the IT Incident. All customers who had a transaction declined or who were

otherwise unable to access their funds suffered inconvenience. Many are

likely to have suffered distress, and some may have suffered financially. As

noted above, the affected customers are likely to have included vulnerable

customers. Such customers are more likely to be adversely affected than

others, at the same time as being less likely to be able to take action to

seek redress. Nevertheless, Raphaels took no steps to offer redress to those

customers notwithstanding any loss, inconvenience or distress they

experienced.

6.20.
Having taken into account these aggravating factors, the Authority considers that

the Step 2 figure should be increased by 15%.

6.21.
The Step 3 figure is therefore £1,107,414.

Step 4: adjustment for deterrence

6.22.
Pursuant to DEPP 6.5A.4G, if the Authority considers the figure arrived at after

Step 3 is insufficient to deter the firm who committed the breach, or others, from

committing further or similar breaches, then the Authority may increase the

penalty.

6.23.
The Authority considers that the Step 3 figure of £1,107,414 represents a

sufficient deterrent to Raphaels and others, and so has not increased the penalty

at Step 4.

6.24.
The figure at Step 4 therefore remains at £1,107,414.

Step 5: settlement discount

6.25.
Pursuant to DEPP 6.5A.5G, if the Authority and the firm on whom a penalty is to

be imposed agree the amount of the financial penalty and other terms, DEPP 6.7

provides that the amount of the financial penalty which might otherwise have

been payable will be reduced to reflect the stage at which the Authority and the

firm reached agreement.

6.26.
The Authority and Raphaels reached agreement at Stage 1 and so a 30% discount

applies to the Step 4 figure. The Step 5 figure is therefore £775,100. It is the

Authority’s usual practice to round down the final penalty figure to the nearest

6.27.
The Authority hereby imposes a total financial penalty of £775,100 on Raphaels

for breaching Principles 2 and 3 and associated rules of SYSC 8.

7.
PROCEDURAL MATTERS

7.1.
This Final Notice is given to Raphaels under and in accordance with section 390

of the Act.

7.2.
The following statutory rights are important.

Decision maker

7.3.
The decision which gave rise to the obligation to give this Final Notice was made

by the Settlement Decision Makers.

Manner of and time for payment

7.4.
The financial penalty must be paid in full by Raphaels to the Authority by no later

than 12 June 2019.

If the financial penalty is not paid

7.5.
If all or any of the financial penalty is outstanding on 13 June 2019, the Authority

may recover the outstanding amount as a debt owed by Raphaels and due to the

Authority.

7.6.
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.

Authority contacts

7.7.
For more information concerning this matter generally, contact Lisa Ablett at the

Authority (direct line: 020 7066 9886 / email: Lisa.Ablett@fca.org.uk) or Joseph

Nourse
at
the
Authority
(direct
line:
020
7066
5512
/
email:

Joseph.Nourse@fca.org.uk).

Head of Department
Financial Conduct Authority, Enforcement and Market Oversight Division

ANNEX A

RELEVANT STATUTORY AND REGULATORY PROVISIONS

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

1.2.
Section 206(1) of the Act provides:

“If the Authority considers that an authorised person has contravened a
requirement imposed on him by or under this Act… it may impose on him a penalty,
in respect of the contravention, of such amount as it considers appropriate.”

RELEVANT REGULATORY PROVISIONS

Principles for Businesses

1.3.
The Principles are a general statement of the fundamental obligations of firms
under the regulatory system and are set out in the Authority’s Handbook. They
derive their authority from the Authority’s rule-making powers set out in the Act.
The relevant Principles are as follows.

1.4.
Principle 2 provides:

“A firm must conduct its business with due skill, care and diligence”.

Principle 3 provides:

“A firm must take reasonable care to organise and control its affairs responsibly

and effectively, with adequate risk management systems.”

SYSC 8 (as in force during the Relevant Period)

1.5.
SYSC 8.1.1R states:

“A common platform firm must:

(1) when relying on a third party for the performance of operational

functions which are critical for the performance of regulated activities, listed

activities or ancillary services (in this chapter "relevant services and

activities") on a continuous and satisfactory basis, ensure that it takes

reasonable steps to avoid undue additional operational risk;

(2) not undertake the outsourcing of important operational functions in such

a way as to impair materially:

(a) the quality of its internal control; and

(b) the ability of the appropriate regulator to monitor the firm's

compliance with all obligations under the regulatory system and, if

different, of a competent authority to monitor the firm's compliance

with all obligations under MiFID.”

1.6.
SYSC 8.1.4R states:

“For the purposes of this chapter an operational function is regarded as critical or

important if a defect or failure in its performance would materially impair the

continuing compliance of a common platform firm with the conditions and

obligations of its authorisation or its other obligations under the regulatory system,

or its financial performance, or the soundness or the continuity of its relevant

services and activities.”

DEPP

1.7.
Chapter 6 of DEPP, which forms part of the Authority’s Handbook, sets out the
Authority’s statement of policy with respect to the imposition and amount of
financial penalties under the Act.

The Enforcement Guide

1.8.
The Enforcement Guide sets out the Authority’s approach to exercising its main
enforcement powers under the Act.

1.9.
Chapter 7 of the Enforcement Guide sets out the Authority’s approach to exercising
its power to impose a financial a penalty.