Duty Calls: How to Prepare to FCA's New Regulation

FCA's Consumer Duty, a new set of rules that aims to improve consumer protection and promote better outcomes for consumers in financial markets, will enter its third milestone on April 30. The Duty represents a significant shift in the way financial firms must approach consumer protection. However, despite the new rules being published in July 2022, many companies are not yet fully prepared for the changes.

What is the Consumer Duty?

The Consumer Duty (the Duty) is a new UK regulation that sets higher and clearer standards of consumer protection across financial services. It requires firms to act in good faith towards retail customers, avoid causing foreseeable harm, and enable customers to pursue their financial objectives. The Financial Conduct Authority (FCA) expects the Duty to drive a fundamental shift in industry mindset.

What are the main outcomes the Duty is designed to deliver?

1. products and services: ensuring these are: (a) designed to meet customers’ needs and (b) do not cause harm, for example by exploiting customers’ behavioral biases, lack of knowledge or vulnerability.
2. price and value: is fair considering the benefits of a product or service to a customer.
3. consumer understanding: a firm’s communications empower customers to make effective, timely and properly informed decisions to assist them in achieving their financial objectives.
4. consumer support: helps customers to realize the benefits of the products and services they use or have bought.

What is the implementation timeline?

The FCA adopted an assertive approach to the implementation period when it published its final rules and guidance on 27 July 2022. A number of specific deadlines were set, including:

• 31 October 2022 – firms’ boards to agree with implementation plans and maintain oversight of their delivery.
• 30 April 2023 – manufacturers to complete all the reviews necessary to meet the four outcome rules for their existing products and services so that they can: (i) share relevant information with distributors, and (ii) identify where changes need to be made and implement remedies by 31 July 2023.

The rules are coming into force on a phased basis and there are two key dates to be aware of:

• 31 July 2023 – the rules apply to all new and existing products or services that are open to sale or renewal; and
• 31 July 2024 – the rules come into force for closed products or services.

What does the Duty mean for authorizations?

A cornerstone of the FCA’s authorization process is considering whether the applicant firm is ready, willing and organized to comply with the requirements of the regulatory system. Accordingly, a firm applying for authorization will have to demonstrate that they have put the customer at the heart of what they do and that products and services meet the requirements of the Duty.

In most cases, a firm should be able to evidence compliance with the Duty through supporting documents, such as a business plan or policy on fair value assessment. Other elements may be embedded through processes and sign-off, such as the design and approval of financial promotions to ensure customers understand the information presented.

How does the Duty apply to firms throughout the distribution chain?

As a starting point, firms should assess the extent to which they can determine or influence:

• the design, distribution or operation of retail products or services.
• communications with retail customers.
• customer support for retail customers.

The greater influence a firm has over the consumer outcomes resulting from these activities, the greater its responsibility will be under the Duty.

Firms within the distribution chain are largely referred to as ‘manufacturers’ and ‘distributors’. All participants in the chain are expected to work together and share information in order to deliver good outcomes for the end consumer.

How does the duty apply to the wholesale market?

The Duty applies to all firms that have a material influence over, or determine, retail customer outcomes. Wholesale market participants should be carrying out a scoping exercise to determine their obligations under the Duty, particularly where they design products that end up being sold to retail customers. The FCA is aware that some firms may be tempted to incorrectly classify products as ‘non-retail’ in an attempt to avoid the Duty, but the regulator has stated that this would be a breach of the Duty itself. In summary, wholesale firms cannot dismiss the Duty on the basis that they do not directly face consumers.

Is there an example?

A good example would be an intermediary broker who sits between a tier 1 bank and a retail broker. If this broker is materially amending the product it executes with the bank before dealing with the retail broker, is this influencing the outcome for the retail broker's customers? Regardless of the answer, the intermediary broker should be documenting its consideration of the potential impact on the retail client to determine its obligations under the Duty.

Is the application different for non-UK customers?

If the Duty applies when a UK firm is dealing with UK customers, it will also apply when it deals with non-UK customers.

The FCA has recognized that UK manufacturers may find it difficult to obtain information from non-UK firms which are not subject to the Duty. In this situation, the UK manufacturer is expected to consider what is reasonable and use whatever information it has available to it.

Are expectations different for smaller firms compared to larger firms?

Small firms are not expected to deploy the same resources and processes as larger firms. However, the focus on good customer outcomes should be evident throughout every firm’s operations and culture. In addition to the size of the firm, expectations will be primarily driven by:

• the nature and complexity of the product or service.
• the characteristics of customers in the target market (e.g. resources or vulnerabilities).
• The firm’s role and influence in relation to retail customer outcomes.

Does the Duty change the guidance for fair treatment of vulnerable customers?

The FCA published finalized guidance on the fair treatment of vulnerable customers in February 2021 (FG21/1). This will continue to apply as the Duty enters into force. Firms may wish to consider refresher training on this topic, particularly given the requirements under the Duty for firms to: (i) put good consumer outcomes at the center of their businesses; (ii) be able to demonstrate those outcomes are being met; and (iii) focus on the diverse needs of their customers at every stage of the customer journey.

Focusing on the key guidance from FG21/1 will help significantly with preparation for the Duty.

I am concerned my company will not be ready, what are the consequences?

The FCA continues to engage with firms on their implementation plans through a series of published portfolio letters. The regulator has made it clear that firms should inform the FCA when they are unable to meet any relevant deadlines around the Duty.

The FCA has repeatedly highlighted the importance of this initiative through its rules, guidance, firm communications and business plan. Failure to comply with the Duty is likely to carry significant consequences for firms, particularly where this is highlighted through an incident that leads to retail customer harm.

How can you apply effective monitoring and oversight post-implementation?

Firms cannot be sure of their compliance with the Duty unless they assess the outcomes their customers are receiving. Customer support monitoring and supporting MI will be key tools in assessing the effectiveness of consumer outcomes. As a starting point, firms should identify relevant sources of data that can be used to monitor their compliance with the Duty. Where sources are not readily available, firms should devise a strategy to gather relevant data sources as a priority.

Once data sources have been established, firms should arrange for the regular provision of MI to help the board or governing body regularly monitor compliance with the Duty.