Critically discuss why it is important to communicate in a fair, clear and non-misleading way with clients and the pitfalls of inaccurate communications.
Introduction.
The Financial Conduct Authority (FCA) principles to treat customers fairly (TCF), communicate clearly and not provide misleading information play a significant role in financial organisations especially since the financial crisis in 2008.[1] For instance, the financial crisis challenged the whole financial system. They roots of this crisis developed over the previous three decades. For example, the securitisation of sub-prime mortgages, which were risky and sold to investors as safe investments, led to financial instability.[2] The lack of international ‘…common standards and regulations…’[3] was also a factor. The FCA rules seek to prevent a recurrence of the financial crisis, provide a fairer deal for consumers, protect against unauthorised transactions, and increase security for investments. [4] The FCA rules support consumers through the Financial Services and Markets Act 2000 (FSMA 2000) and Payment Services Regulations 2009 (PSRs), the Consumer Credit Act 1974 (CCA) and, FCA Handbook.[5] The FCA rules include minimum standards of service that a client can expect when contacting financial institutions. For instance, financial organisations should conduct their business openly and honestly.[6] This means that the organization should be clear about the interest, yields or fees. All paperwork, commercial offers and advertising must carry complete, transparent and accurate information about the financial product or offer.[7] The second principal of the FCA rules is that financial organisations should be conducted professionally, with due responsibility and effort.6 The next FCA principal is that all financial organisations must treat customers fairly and respectfully.6This means that financial companies should establish an effective risk management system, be responsible and establish robust controls for any financial transactions.6 Another FCA principal is that financial companies involved in investing should implement and establish financial policies according to MIFID.[8] FCA Principle 5 (market behaviour) extends to the international market6. If relations between companies have an unfair or negative effect on the UK financial system, the FСA will consider taking regulatory action and take into account the standards expected in the market in which the firm operates.[9] Also, the customers’ interests should be taken into account seriously and financial institutions should treat their customers fairly.6FCA Principal 7 is that financial institutions are obliged to provide information in a form which is ‘…clear, fair and not misleading…’6 This means that the information should be clearly stated, transparent and explain the benefits and disadvantages, if any, of any financial deals.6Also, conflict of interests between financial organisations and clients must be handled fairly and not infringe on each other’s interest, which is FCA Principal 8.6 The next FCA principle is 9 and states that all financial deals, must be both affordable for customers and financially sustainable for the financial organisation.6 Client asset protection is the focus of 10 principle of FCA.6 This means that financial organisations must make arrangements to protect customer investments and financial transactions.6 The last FCA principle is that financial companies should openly collaborate with the regulator.6 The company must disclose all the pertinent information about the company to the FCA.6 These principles support financial organisations to protect customer financial transactions and provide a fair, transparent and fair experience. However, The Financial Ombudsman Service (FOS) which deals with complaints[10] and the FCA have published many cases where organisations have interpreted the FCA regulations differently. Some have failed to meet FCA rules to communicate in a fair, clear and non- misleading way with customers. Financial companies violating these principles face serious consequences. The FOS or FCA might publish the case on their websites (which may then be reported in the media), thereby damaging the company’s reputation.[11] In order to show the importance of implementing and complying with these principles, this essay will explore a selection of cases published in the FCA and FOS. This essay, will critically discuss the failure to communicate in a fair, clear and non- misleading way with customers using specific case studies. Finally, it will show the consequences of misleading communications for financial organisations.
Misleading information by non-authorised company.
According to FCA review from 2018, many pension transfer advice companies failed to comply the FCA’s Handbook in providing suitable and clear advice to customers.[12] For instance, in 2018, the FCA assessed 18 pension companies out of 45 that provided advice in this area.12The 18 pension transfer advisors had 48,248 clients and processed 24,919 pension transfers.12After the review, two of these companies stopped providing independent advice on pension transfers altogether, and another two firms decided to withdraw their FCA certification to provide these services.12 For example, recently, the FCA was involved in civil court proceedings dealing with a breach of s19 FSMA, s21 FSMA, s397 FSMA and s89 Financial Services Act by Avacade Limited-‘Avacade’(in liquidation), trading as Avacade Investment Options, and Alexandra Associates (U.K.) Limited, trading as Avacade Future Solutions, and against individuals Craig Lummis, Lee Lummis and Raymond Fox.[13] Avacade and others provided misleading information regarding pension funds by encouraging clients to invest in alternative investments such as tree plantations, even though these activities were not authorised by the FCA or approved by FSMA 2000.13The FCA investigated on behalf of the affected consumers and found in favour of them. The FСA investigates regulatory violations and will impose injunctions to prevent further violations.13 Presently, the trial date for this case has not been set.13However, the FCA has identified a breach of the s19 FSMA, which is ‘carrying on regulated activities in the UK without FCA authorisation or exemption’.[14] It also breached s21 FSMA, which is ‘communicating financial promotions without the required authorisation or approval’.14Other violations are s397 FSMA14 and s89 Financial Services Act, which is ‘making misleading statements’.13 After the FCA began investigating Avacade, the business was liquidated.13 The senior officers named above will be prosecuted in civil court. To conclude, the consequences for Avacade and others were substantial as the FCA investigated the case and referred it to the civil courts.
Santander breached FCA principles 3,6,11 between 2013-2015.
Santander has kept £183 million from the estates of customers who have died. In accordance with section 206 of FSMA 2000, the FCA imposed a fine of £ 32,817,800 for Santander.[15]. The bank did not have an effective procedure for paying money to inheritors from accounts in the event of a client’s death, according the FCA.15 After the FCA investigation, it was revealed that 40,428 people were still waiting for payments from the Santander.[16] Some of beneficiaries did not know about their dead relative’s accounts, whereas others could not receive money as Santander failed to identify the total amount for deceased customers.16 Santander did not have robust controls over the tracking of probate proceedings. In this regard, the bank had no idea if probate was closed and when they should transfer the money to the heirs.[17] This delayed the process of transferring funds to the heirs. Moreover, from 2013 until 2015, Santander had meetings with the FCA but did not mention such breaches, even though the bank knew about this problem.[18] This meant that the bank violated FCA principal 11 failing to communicate with the FCA.[19] According to Section 4.64 of the FCA Final Notice to Santander, it was discovered that some deceased customers of this bank might also have duplicate profiles in the bank’s IT system, which might be connected to different accounts and investments made. It also appears that in the UK people have no specific identification number, and therefore it is possible to open a duplicate profile in the bank and this might cause issues.[20] This means that it is difficult to identify and connect a deceased customer’s profile with their IT profiles. FCA recognises that financial organisations have issues in the development of effective management and monitoring of loss processes, dead customers and dealing with probate.[21] However, with respect to the issues that underlie this Final Notice, it is clear that Santander’s behaviour did not meet basic regulatory requirements.21 It revealed that the bank violated the FCA principles 3, 6 and 11 between 2013-2016 because it did not have a proper payment process and there was no effective management to avoid risks and they did not treat customers fairly.[22] The consequences of such unfairness and misleading miscommunication with clients by Santander were not long in coming. Santander must pay a financial penalty of £32,817,800 to the FCA no later than 9 January 2019.[23] This Final Notice and the decision were made by FCA in accordance with section 390 of the FSMA. The following statutory rights are important.[24] This case was published under Sections 391(4), 391(6) and 391(7) of the Act by the FCA which may well risk the bank’s reputation.[25] To sum up, the FCA rules on treating customers and clients fairly, communicating clearly and not providing misleading information were infringed and caused significant financial challenges to Santander.
Financial sustainability.
All financial deals, must be both affordable for customers and financially sustainable for the financial organisation which was describe above in FCA principle 9. However, in reality it is a significant issue for some banks. According to the Financial Ombudsman Service, one bank’s officer provided £4000 as a loan to a Mr J who had a learning disability, and limited work experience as a warehouse assistant. He applied for a loan to setup his own business as a handyman, even though he did not have a business plan, or experience in that area to pay the loan back.[26] The bank’s officer made a positive decision based only on the client’s good credit history.26The loan was spent on buying tools and a van. However, he could not find any work as a handyman and could not repay the loan. His details were sent to a debt collection organisation. Mr J urgently sold his van and tools at a significant loss.26 He tried to repay the loan as much as he could. Mr J asked Ms Y-the local community worker to help deal with the bank as he did not know how to pay the loan back. Ms Y became involved in this case and dealt with the bank on behalf of Mr J. After the bank’s rejection, the FOS investigated the loan application and other related documentation. After investigating, the bank’s officer agreed that he knew that Mr J had a disability. The officer’s defence was that he was told that the client had a good credit history and because of this, it was possible to arrange such a loan.26 The FOS decided that in such circumstances Mr J would not receive a loan from any lender, especially as Mr J was very clear that he lives on social benefits and had no other income. The FOS ordered the dismissal of the loan agreement between the bank and Mr J. It also forced the bank to refund all charges made because of failed loan repayments. FOS arranged a £300 payment to the customer as moral compensation.26 To sum up, the terms of the financial deal should be suitable for both the bank and the customer, since the two parties should benefit from these financial relations. Financial organisations should provide training to employees to reduce such issues.
Haider Abdullah v Credit Suisse.
It is important that any loans do not expose borrowers to a substantial risk of over-indebtedness.[27] However, in the case of Haider Abdullah v Credit Suisse, Credit Suisse apparently misunderstood the FCA rules and provided misleading information to the Haider Abdullah family from Kuwait, by selling unsuitable at-risk products.[28] In May 2008, the claimants purchased Note 18 worth $US 20 million from Credit Suisse.[29] Later, the bank advised the client to increase their investment by buying Note 19 for USD $2.4 million.[30] The final note 20 was purchased during the financial crisis in October 2008.[31] Later in October 2008, the bank arranged for most of the Claimants’ existing portfolio to be switched into a consolidated note, which put their investments at greater risk. The bank advised that this deal would not entail additional costs.[32] However, as soon as the transaction was completed, the bank demanded additional payments to support the leverage on the portfolio. [33] The claimants decided not to pay the ‘margin call’ of the bank and so the bank liquidated their account.[34] The Claimant family was left with an overdraft of $US 300,000, after the claimant family had invested approximately $US 30 million, as indicated by the contract.34Credit Suisse provided misleading information about the investment risk and also put the bank’s reputation at risk as this case was published in the FCA website and other internet sources. According to Section 138D FSMA 2000, Mr. Abdullah claimed damages through the court.[35] The client presented three arguments. Firstly, Credit Suisse did not ensure that their investment advice was appropriate for their client, even when the client clearly wanted to minimise financial losses.[36] Therefore, the bank violated the FCA standard COBS 9.2.1R.[37] Next, the bank misled the client and did not notify him about possible investment risks and financial losses, especially since the client had no experience in this area.[38] In this regard, the bank neglected the COBS 9.2.2R.37 Finally, Credit Suisse violated COBS 4.2.1R[39] of the FCA rules because it did not provide honest and clear information about the investment deal, thereby misleading the client.[40]. Credit Suisse claimed that Mr. Abdullah was interested in obtaining the greatest profit, and he knew about the financial risk. [41]. Therefore, they claim that the client received good advice from the bank and wittingly purchased the risky investments. The bank also claimed that the financial losses happened due to the global financial crisis. [42] Therefore, it was not the bank’s breach of duty. The court’s rejected the weak defences of Credit Suisse. The bank did not explain the financial deal and the client did not understand the terms and conditions of this investment.[43]. The bank did not complete a client profile form to ensure that Credit Suisse had no doubts about the client’s investment objectives.43. The judge also rejected the bank’s argument that the loss of the client’s investments happened because of the financial crisis.[44]. The court explained that the bank’s financial advisor is obliged to protect the client’s investment and therefore any financial deals from market failures which is FCA Principle 10.[45]. To sum up, the consequences of such misleading, unfairness and dishonesty from Credit Suisse is that the bank must pay a significant amount to Mr. Haider Abdullah. Also, Credit Suisse was penalised significantly “in respect of a breach of Principles 2 and 3 of the FSA’s Principles for Business which occurred between 30 September 2007 and 19 February 2008”. [46]. More importantly, this case was published in the media. Therefore, any investors might hesitate to engage in any financial deals with Credit Suisse. To sum up, such misleading communication and treating the customer unfairly damaged the bank’s reputation as well as incurring penalties from regulator.
Clear communication with customers.
The legal cases above demonstrated the significant consequences if a breach of FCA principles occurs. It is important that financial organisations clearly explain any financial deals to customers and ensure customers understand the Terms and Conditions of any General Agreements between them, which is FCA Principle7.[47]However, some banks fail to meet such requirements. For instance, Ms A was incentivised by another bank’s promotion to change her bank account and receive a £100 incentive payment from her new bank.[48] However, the new bank refused to pay the £100 incentive saying that Ms A did not meet one of the requirements.48 Ms A set up three direct debits with the new bank as was described in the terms and conditions of this bank’s offer.48The new bank argued that one of the Ms A’s direct debits was set up “…more than 30 days after the switch…”48to the bank account. The bank’s offer conditions included opening three active direct debits, and depositing at least £ 500 to her new account, which she did, within 30 days after the transfer was completed.48 According to Ms A, the terms and conditions of this offer were not clear. After the bank’s rejection, the Financial Ombudsman Service (FOS) began its investigation.48FOS agreed with Ms A that the offer did not identify a time limit identified for the creation of the three direct debits.48The FOS made the bank pay the £100 incentive to Ms A.48It seems that the bank violated the FCA principal 7 which is to communicate with customers in a clear manner, treat them fairly and not provide misleading information. To summarise, when financial institutions provide unclear information, the financial implications can be significant for financial organisations as it shows above.
Breach of FCA principles by sale of PPI to all customers.
Creating an effective mechanism for receiving and handling customer complaints might be used to improve an organisation’s operations, according to FCA.[49] Each complaint must be taken seriously, fully investigated and resolved in a timely manner and without bias.[50] However, in the legal case regarding Payment Protection Insurance (PPI), banks and other financial organisations not only violated the FCA rules to communicate in a fair, clear and non-misleading way with customers, but also rejected more than 1,500 claims for PPI compensation in the early stages of the investigation.[51] For instance, banks, and other financial organisations sold Payment Protection Insurance (PPI) to clients who were not eligible or did not require it.[52]PPI was sold with loans, credit cards, mortgages, overdrafts etc.52PPI was designed to cover costs and expenses in certain circumstances. For example, in the case of dismissal, accident, illness, disability and death, clients might cover the costs through PPI.52This information looks attractive, until customers try to claim the PPI. For instance, PPI did not cover many customers as they did not meet certain requirements which were not explained to customers beforehand.51In some cases PPI was added to a financial deal without customer’s knowledge.[53]For instance, people who are self-employed cannot claim PPI.52It seems that financial institutions provided misleading information and treated customers unfairly by selling PPI without adequate explanation. According to The Times, in 2012, banks rejected more than 1,500 claims for PPI compensation, even though banks promised to settle complaints fairly just 18 months previously.51Despite the court decision where banks lost their legal case and were made to pay PPI compensations back to customers, another issue arose. Some financial organisations, tried to suggest that they were never involved with PPI and had always treated customers fairly and with respect.51 This argument was rejected by the FCA. After the FCA and FOS investigation, they established online procedures to claim PPI until 29 August 2019.52 To sum up, in the PPI case the FCA rules to treat customers and clients fairly, communicate clearly and not provide misleading information were infringed and caused significant financial challenges to financial organisations.
Overdraft and miscommunication.
As the case above shows, FCA rules are important for relations between financial organisations and customers as both parties have interests in the relationship. This is not always understood by every organisation. To illustrate, the Financial Ombudsman organisation published a case where Mr. F was a bank customer for many years.[54]Sometimes, he used an overdraft and repaid it without any issues. However, after checking his account, he noticed that his bank was charging at the rate for unauthorised overdrafts for his overdraft. He discovered that he no longer had an authorised overdraft. His bank had not notified him about it. When he learned this he changed banks in a very short time. Nevertheless, his previous bank still claimed the interest and asked him to pay it.54The bank’s argument was that telephone calls were made to explain such changes. Mr F explained that he considered the bank’s calls as bank advertising and so he did not answer these calls. Also, the bank pointed out that Mr. F had some financial issues. For instance, his cheques were not always covered by sufficient funds and the current account was not kept in “…good order…”54 In the end, the case was resolved in favour of Mr F as the bank did not find other ways to engage with Mr F and explain the issues and changes which were made to his bank account. FOS concluded that it was unfair to charge bank interest without authorisation from the client. FOS ordered the bank to pay £150 to Mr F for any trouble caused.54To conclude, in all circumstances, financial organisations must treat customers fairly and respectfully and find a way to engaged with customers and explain any bank charges.
Conclusion
In conclusion, banks must to be mindful of the consequences of their actions. Failure to treat customers fairly, misleading customers, and not conducting their business openly and honestly will result in loss of reputation, fines and other costs. Santander knew about their account problems with deceased customers for years but preferred not to disclose the information to the FCA until later. Disclosure might have reduced the bank’s financial penalties and solved this issue more quickly. The bank failed the FCA principles 3, 6 and 11 between 2013-2016. The bank did not have a proper or effective process. It also did not treat customers fairly. Santander was not only obliged to pay fines, but it must deal with complaints from more than 40,428 disappointed clients. This case was published not only in the FСA, but also on the Internet, which most likely undermined the bank’s reputation. The case with Credit Suisse, explored above, shows that the bank failed FCA’s principles 2 and 3. The bank mislead Mr Abdullah with the investment deal, did not protect his investments, and did not notify him about possible investment risks and financial losses. Credit Suisse lost this legal case and was substantially penalised. It seems that companies may implement FCA rules and spell out the company’s policies, but these internal documents for some financial organisations remain unused. This is probably due to poor employee training. Understanding these rules can raise awareness of the meaning of fair treatment in relation to customer needs and expectations. Financial organisation’s policy should not only be set out as company rules, but also put into practice and compliance enforced to such standards. Good customer service will boost the customer base and increase the demand financial services. Compliance with the law, will reduce the number of complaints and lawsuits. Thus, financial organisations will build trust with the regulator and reduce doubts about the organisation’s work. To summarise, it is important that financial institutions communicate in a fair, clear and non-misleading way with clients and that financial institutions treat customers better.
Bibliography:
[1] Girard Simoney, ‘How To Treat Customers Fairly: FSA’ [2011] Financial adviser <https://www-nexis-com.ezproxy.library.qmul.ac.uk/results/enhdocview.do?docLinkInd=true&ersKey=23_T28302333932&format=GNBFI&startDocNo=0&resultsUrlKey=0_T28302333934&backKey=20_T28302333935&csi=242817&docNo=1> accessed 3 January 2019.
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