The proposed changes to CONC follow the introduction of the UK Government’s ‘Bounce Back Loan Scheme’ (or BBLS) which introduced a new category of exempt credit agreement in Article 60C(4A) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (the RAO) (for more, please see our earlier blog post). But the RAO did not exempt the collecting of debts due under such BBLS loans.
The draft instrument proposes to amend CONC so that:
– CONC 7.12 is extended so it applies to firms who would be consumer credit lending but for the changes made to the RAO for BBLS loans; and
– the expression ‘regulated credit agreement’ is expanded to include an exempt agreement under Article 60C(4A) of the RAO (but not in CONC 7.1.5G, CONC 7.6 and CONC 7.7.4G).
The deadline for responding to the consultation is 5 July 2020.
If you’ve spoken to me over the last few weeks, you’ll know much of my working life has been spent thinking about concessions, unilateral variations and modifying agreements (exciting, no?). And some may say that modifying agreements are a little bit like lockdown: you know it’s for the best but it isn’t half frustrating trying to make it work (or maybe I’ve just got lockdown fever…).
I’ve been supporting the Finance & Leasing Association and its lobbying of HM Treasury to help make the modifying agreement provisions easier for lenders to comply with. There’s really good reasons why this should happen (and I’ve just written an update on my commentary on CONC for Issue 111 of Butterworths Financial Regulation Service dealing with this); at the very least, concessions don’t create the best of customer journeys.
The FLA asked me last week whether I could put together some infographics (it seems the recent ones on the FCA’s temporary guidance have gone down well) to help lobby HMT. Now they’ve gone into HMT, I thought I’d share them (and there are four).
Here’s the first: a typical customer journey through a modifying agreement where it will be sent to the customer by post:
And here’s the second: a typical customer journey through a modifying agreement where it will be sent to the customer online:
Here’s the third: some thoughts on the legal requirements for modifying agreements (and the slide is just scratching the surface – there are wonderfully complicated issues including whether there’s a right to cancel under the Financial Services (Distance Marketing) Regulations 2004 or whether a creditworthiness assessment needs to be made under CONC 5.2A):
And here’s the fourth (and final) one: a possible solution for firms if HMT allows a modifying agreement ‘lite’ approach (as I’ve called it; can’t wait for the royalties to roll in….):
It goes without saying that the ‘lite’ approach is plainly easier: the customer knows where she stands instantly and the document provides a clear and simple explanation of the modified agreement’s terms.
Surely HMT cannot say no? Or can they? Time will tell.
The ASA said “the average consumer would understand the term “pre-approved” in the ad to mean that they were guaranteed to get any loan or product subsequently shown to them as pre-approved when using ClearScore’s services. We noted that the pre-approved offers would be dependent on personal eligibility, subject to the customer providing the correct financial information to ClearScore, and subject to a lender’s own checks. However, there was no information in the ad to indicate that further checks would be made following a pre-approved offer, which could result in the application being declined. Because the claim “pre-approved”, in the context of the ad, was likely to be understood to mean that customers who received “pre-approved” offers would be guaranteed to get those offers, when that was not the case, we concluded that the ad breached the Code”.
The ASA told ClearScore to make sure its advertising complied with CONC and to make it clear that pre-approved offers are subject to additional checks by the lender before approval.
– entering into an agreement made under the BBLS is not a regulated activity because such agreements will be exempt credit agreements (but debt-collecting of those agreements will remain a regulated activity);
– there is no requirement to undertake a creditworthiness or affordability search before entering into an agreement under the BBLS;
– the unfair relationship provisions in Sections 140A to 140C of the Consumer Credit Act 1974 are expected to be dis-applied for agreements made under BBLS ; and
– the FCA’s expectations on creditworthiness assessments under the CBILS.
The effect of this Order is to amend Article 60C of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (the RAO) to add a new exemption for credit agreements entered into under the Bounce Back Loan Scheme (but the exemption will not apply to debt-collecting under such agreements).
Interestingly, the explanatory memorandum says this Order is needed to “urgently remove loans made under BBLS from a highly prescriptive consumer credit regulatory regime which is currently inhibiting lenders from granting loans to small businesses”. It remains to be seen whether HM Treasury will have a similar view on the proposed revisions to the modifying agreement provisions.
The FCA recognises “the need to make changes to the CBILS scheme immediately“. The FCA says if firms comply with the relevant requirements of CBILS, then it does not expect them to comply with CONC 5.2A-34 where the lending involves a regulated credit agreement. But firms must continue to comply with CONC 5.2A for all other regulated lending.
The FCA expects to make a similar statement when BBL is launched.
After the UK Financial Conduct Authority introduced temporary guidance to consumer credit firms dealing with certain customers needing COVID-19 related payment holidays on 14 April 2020 (for more, see our earlier post), I’ve produced a one page summary of tips for consumer communications:
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