You must prominently include information about sources of free debt counselling in your first communication with the customer, and provide a link to the Money Advice Service website on your website.
Dealing with lenders of
customers (R) The regulator sets out their requirements for firms to communicate with lenders appropriately.
Paragraphs 2.5,
3.18 of DMG There are no rules or guidance in this sub-section that do not feature in CCA/OFT regulation or legislation.
Guidance to rule:
Note that paragraphs 2.5 and 3.18niv of DMG are now regulatory rules.
Any communications you make to lenders on behalf of customers must be transparent so that the customer’s interests are protected. You must also maintain transparency with lenders when entering into a debt solution regarding how this will affect the manner in which payments are received.
Vulnerable customers
(R & G) The regulator sets out their requirements on firms to communicate with vulnerable customers appropriately.
Paragraph 2.4 of
DMG There are no rules or guidance in this sub-section that do not feature in CCA/OFT regulation or legislation.
Guidance to rule:
Note that paragraph 2.4 of DMG is now a regulatory rule.
It is now a rule that you must have clear and effective policies in place to identify and deal appropriately with particularly vulnerable customers, for example any customers who may have mental health and mental capacity issues.
8.3 Pre-contract information and advice requirements Pre-contract
information and advice requirements (R & G)
The regulator sets out their requirements on a firm to provide sufficient information in a durable medium following enquiries about the firm’s services or advice provided to a customer.
Paragraphs 2.6, 3.9, 3.21, 3.22, 3.23, 3.33, 3.35, 3.36, 3.38, 3.40 of DMG
The following guidance has been introduced by the regulator:
CONC 8.3.5G:
The information required by CONC 8.3.4R should be provided leaving sufficient time for the customer (taking into account the complexity of the information and the customer’s financial position) to consider it before having to make a decision on the appropriate course of action.
CONC 8.3.8G (2):
The firm’s services referred to in CONC 8.3 include any debt solution the firm offers to a customer. Therefore, in setting out fees or charges for a firm’s services, the fees and charges the firm charges in relation to a debt solution should be included.
CONC 8.3.8G (4):
A not-for-profit debt advice body should refer a customer to another not-for-profit debt advice body under CONC 8.3.7R(3) where, for example, it is unable to assist a customer.
CONC 8.3.8G (5):
An appropriate not-for-profit debt advice body would be one that provides the most appropriate debt solution given the customer’s financial circumstances.
Guidance to rule:
Paragraphs 2.6a, 2.6b, 3.9c, 3.23, 3.23a, 3.23b, 3.23c, 3.23f, 3.23gi, 3.23gii, 3.23h, 3.23i, 3.23o, 3.26k, 3.33, 3.35, 3.38, 3.38b, 3.38c, 3.38e, 3.38h, 3.38j, 3.38k, 3.38l, 3.38m, 3.38n, 3.38q, 3.38r, 3.38s, 3.40c, 3.40d of the DMG are now regulatory rules.
You must give the customer certain information in a durable medium when the customer first enquires about your services.
Before giving any advice to the customer, you must also carry out a full assessment of the customer’s financial circumstances.
8.4 Debt solution contracts Debt solution
contracts (R & G) The regulator sets out their requirements for firms to provide customers with a written contract setting out its terms and conditions for the provisions of its services.
Paragraphs 3.40
and 3.41 of DMG The following guidance has been introduced by the regulator:
CONC 8.4.4G:
A firm may be required to make a refund of its fees and charges, in whole or in part, if a firm fails to deliver its service in whole or in part or it has carried out the service without reasonable care and skill.
Guidance to rule:
Note that paragraphs 3.40a, 3.40b, 3.40c, 3.40d, 3.40e and 3.41a, 3.41b, 3.41c, 3.41d of DMG are now regulatory rules.
You are required to provide customers with a written contact with the terms and conditions for your services. The FCA lists certain information that they require you to include in this contract.
8.5 Financial statements and debt repayment offers Financial statements
and debt repayment offers (R & G)
The regulator sets out their expectations on the form and content of the financial statement sent by firms to lenders on behalf of customers.
Paragraph 3.24, 3.25, 3.26, 3.28 of DMG
The following rule has been introduced by the regulator:
CONC 8.5.1R (2):
A firm must ensure that a financial statement sent to a lender on behalf of a customer state any fees or charges being made by the firm.
Guidance to rule:
Note that paragraphs 3.24, 3.26a, 3.26b, 3.26e, 3.26f, 3.26g, 3.26h, 3.26l of DMG are now regulatory rules.
You are responsible for ensuring that financial statements sent to lenders on behalf of customers are accurate, clear and contain a complete account of their financial circumstances. You are required to obtain the customer’s confirmation of the statement’s accuracy and their consent to send it.
You must send a copy of the statement to the customer.
8.6 Changes to contractual payments Changes to
contractual payments (R & G)
The regulator sets out their requirements on firms to be able to demonstrate that the advice to a customer not to make a contractual repayment or to cancel any means of making such a repayment before any debt solution is agreed or entered into is in the customer’s best interests.
Paragraphs 3.27 and 3.28 of DMG
The following guidance has been introduced by the regulator:
CONC 8.6.4G (1):
The FCA expects it will generally be in the customer’s best interests to maintain regular payments to lenders (even if the repayment is less than the full sum due).
CONC 8.6.4G (2):
An example where it might be in the customer’s best interests not to repay at the rate necessary to meet interest and charges accruing is where there is insufficient disposable income to meet essential expenditure of the type referred to in CONC 8.5.3G. Where that is the case, the firm should explain clearly to the customer why this course of action is necessary and the consequences of the course of action.
CONC 8.6.6G (2):
Where it becomes clear that the course of action in CONC 8.6.5R is not producing effects in the customer’s best interests the firm should, where withdrawing from the debt management plan may be in the customer’s best interests, advise the customer of the possibility of withdrawing from the plan.
Guidance to rule:
Note that paragraphs 3.27, 3.28a, 3.28b, 3.28c of DMG are now regulatory rules.
The new rules require you to be able to demonstrate that advice regarding changes to contractual payments is in the customer’s best interest and that you have warned the customer about the potential consequences as a result of the changes.
8.7. Charging for debt counselling, debt advice and related services Charging for debt
counselling, debt advice and related services (R & G)
The regulator sets out their rules and guidance relating to firms’ obligations when charging for debt counselling, debt advice and related services.
Paragraphs 3.29, 3.31, 3.32, 3.34 of DMG Paragraphs 5.3 and 5.4 of the Debt Management Protocol
The following guidance has been introduced by the regulator:
CONC 8.7.1G (1):
The distance marketing rules in CONC 2.6, including the right to cancel in CONC 11, apply to firms with respect to distance contracts which are credit agreements, consumer hire agreements and agreements the subject matter of which comprises, or relates to, debt counselling, debt adjusting, providing credit information services and providing credit references. CONC 11 excludes various credit agreements from the right to cancel.
CONC 8.7.1G (3):
The firm may be entitled to impose a charge in CONC 8.7.1G(2) if the customer requested the firm to begin to carry out its service within the cancellation period (see CONC 11.1.1R or regulation 10 of the Financial Services (Distance Marketing) Regulations 2004.
CONC 8.7.3G (1):
For the purposes of CONC 8.7.2R(2), an obligation is likely to be viewed as undermining the customer’s ability to make significant repayments to the customer’s lenders if it has the effect that the firm may allocate more than half of the sums received from the customer in any one-month period from the start of the debt management plan to the discharge (in whole or in part) of its fees or charges.
CONC 8.7.3G (2):
Once the customer has paid any initial fee for the arrangement and preparation of the debt management plan, or, if earlier, once six months from the start of the plan have elapsed, the FCA would expect there usually to be a reduction in the proportion of the sums received from the customer that the firm allocates to the discharge of its fees and charges.
CONC 8.7.3G (3):
A firm should spread any charges or fees payable by the customer for the administration or operation of the debt management plan following its making evenly over the duration of the plan.
CONC 8.7.3G (4):
The proportion of the sums received from a customer in order to discharge the firm’s fees or charges should take account of the level of repayments the customer in question makes.
CONC 8.7.5G:
A firm, in presenting its fees, costs and charges, should distinguish the fees payable for the firm’s services from any charges payable for court proceedings or other insolvency proceedings.
Guidance to rule:
Note that paragraphs 3.32, 3.34b, 3.34c, 3.34d, 3.34d (box), 3.34e, 3.34f (box), 3.34h, 3.34i, 3.34k, 3.34l, 3.34m, 3.34n, 3.34o of DMG; and paragraphs 5.3 and 5.4 of the Debt Management Protocol are now regulatory rules.
If requested by the customer, you must disclose the existence of any commission between you and a third party relevant to the service provided and disclose the amount.
The FCA has detailed expectations regarding how you must deal with customers when entering into a contract relating to a debt management plan.
8.8 Debt management plans Debt management
plans (R & G) The regulator sets out their requirements on firms in their treatment of customers with whom they have entered into debt management plans.
Paragraphs 3.44
and 3.45 of DMG There are no rules or guidance in this sub-section that do not feature in CCA/OFT regulation or legislation.
Guidance to rule:
Paragraphs 3.44, 3.45a, 3.45b, 3.45c, 3.45d, 3.45e, 3.45i, 3.45j of DMG are now regulatory rules.
There are detailed rules relating to how you must treat a customer whom you have entered into a debt management plan, relating to communications and ongoing assessments.
8.9 Lead generators: including firm responsibility in dealing with lead generators Lead generators:
including firm responsibility in dealing with lead generators (R & G)
The regulator sets out their expectations of firms that accept sales leads from a lead generator, for debt counselling or debt adjusting or providing credit information services.
Paragraphs 3.7, 3.8, 3.9, 3.11 3.12 of DMG
The following rules and guidance have been introduced by the regulator:
CONC 8.9.1G:
The Principles (in particular Principle 6 and Principle 7) apply to actions of a firm dealing with a customer who has been referred to it through a lead generator. For example, where a firm acts on a sales lead and knows or ought to know that the lead generator is using misleading information, advice or actions to obtain a customer’s personal data is likely to amount to a breach by the firm of Principle 6 and Principle 7.
CONC 8.9.4R (1):
A firm must take reasonable steps, where it has agreed to accept sales leads from a lead generator for debt counselling or debt adjusting or providing credit information services, to ensure that the lead generator, where it does not have a Part 4A permission for debt counselling and is not an appointed representative of a firm with such permission, does not carry on debt counselling in obtaining or passing on sales leads to the firm.
CONC 8.9.4R (2):
A firm must take reasonable steps, where it has agreed to accept sales leads from a lead generator for debt counselling or debt adjusting or providing credit information services, to ensure that the lead generator, where it carries on debt counselling, has and continues to have a Part 4A permission for debt counselling or is an appointed representative of a firm with such permission.
Guidance to rule:
Paragraphs 3.7, 3.8, 3.9, 3.9a, 3.11, 3.12, 3.12c, 3.12d, 3.12e, 3.12f, 3.12h, 3.12j, 3.12m of DMG are now regulatory rules.
You are required to take reasonable steps to ensure that the lead generator either has permission from the FCA to carry on debt counselling or does not conduct any debt counselling in obtaining or passing on sales leads to the firm. You must also ensure that any lead generator complies with applicable legal requirements.
Guidance for firms (G) The regulator sets out their expectations of firms who accept sales leads from lead generators to identify their lead generators e.g.
by their FCA authorisation number, confirm their lead generators’ Information Commissioner’s Office registration, and check their Privacy and Electronic Communications (EC Directive) Regulations 2003 process documentation.
N/A The following guidance has been introduced by the regulator:
CONC 8.9.5G:
The FCA would expect firms that agree with lead generators to accept sales leads in relation to debt counselling or debt adjusting to be able to identify, upon request, all the lead generators from which they have received leads (with the FCA authorisation number, where applicable).
CONC 8.9.6G:
Claiming or implying a person is or represents, for example, a charitable organisation is likely to include operating a website which looks like, or is designed to look like, the website of such an organisation.
CONC 8.9.7G:
In complying with CONC 8.9.4R a firm that agrees with a lead generator to accept sale leads should:
1. check with the Information Commissioner’s Office that the lead generator is appropriately registered under the Data Protection Act 1998; and 2. check the lead generator’s Privacy
and Electronic Communications (EC Directive) Regulations 2003 process documentation.
A new requirement is for you to be able to identify (where applicable, with their FCA authorisation number) all the lead generators from which you have received leads.
8.10 Conduct of business: providing credit information services Application (R) Section 8.10 of CONC
applies to firms providing credit information services relevant to the financial standing of an individual;
and firms carrying on operating an electronic system in relation to lending and borrower under a P2P agreement.
N/A –
application N/A – application
Conduct (R & G) The regulator sets out their rules and guidance in relation to the conduct of firms providing credit information services and firms carrying on operating an electronic system lending and borrowing under a P2P agreement.
Paragraphs 3.46 and 3.47 of DMG
There are no rules or guidance in this sub-section that do not feature in CCA/OFT regulation or legislation.
Guidance to rule:
Paragraphs 3.47ai, 3.47aii, 3.47aiii of DMG