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11 de febrero, 2022 | 10 minutes read


HOW WILL THE FCA’S PROPOSED CONSUMER DUTY AFFECT ASSET AND WEALTH MANAGERS?

1
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Joy Kershaw
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This blog was published on 11 February 2022.

At a Glance

 * This blog discusses how the FCA’s proposed Consumer Duty (the “Duty”) will
   affect asset and wealth managers. It follows our previous blog, which covers
   the key impacts for firms across the financial services sector.
   
   
 * The proposals are far reaching and represent a “paradigm shift” in the FCA’s
   expectations of firms. Firms will need to be more proactive in ensuring good
   outcomes for retail customers, which may require cultural changes.
   
   
 * The scope of the Duty is wide as it covers indirect as well as direct
   relationships with retail customers. For example, relationships with
   institutional investors are covered if there are underlying retail investors,
   as in the case of a pension fund. The Duty also puts a greater onus on asset
   managers to consider end outcomes for retail investors even if they do not
   have a direct relationship with them because their distribution is done by
   third parties.
   
   
 * One of the biggest areas of change is the Duty’s price and value outcome,
   which has a much wider scope than the FCA’s existing value assessment rules
   for authorised fund managers (AFMs). It covers all firms that
   (co-)manufacture or distribute products for retail customers, which means
   that distributers, MiFID investment managers and AIFMs managing unauthorised
   funds with retail customers will be required to demonstrate that they are
   providing fair value for the first time. AFMs that are already doing value
   assessments will have to consider value when identifying appropriate
   distribution channels for the target market of the product. Overall, the new
   value assessment requirements are likely to contribute to ongoing downward
   fee pressure, especially for distribution fees.
   
   
 * Other significant changes include the requirement under the customer
   understanding outcome for firms to test and regularly monitor communications
   that are important to customers’ decision-making, and more detailed
   requirements on customer service.
   
   
 * Ahead of the proposed 30 April 2023 deadline, asset and wealth managers will
   need to consider the implications of the Duty on their business model and
   strategy, particularly in relation to what products and services they offer,
   at what price and to whom. They will also need to implement new processes,
   train staff and consider how their Boards will monitor progress against the
   FCA’s desired outcomes. There is a lot to do so firms should start now.

Overview

In December 2021, the FCA published its second consultation on its new Consumer
Duty, which it is proposing to require firms to implement by 30 April 2023. Our
previous blog sets out the key takeaways from this consultation overall, and
this blog focuses on the impact for asset and wealth managers.

To recap, the FCA intends to create a “paradigm shift” in firms’ treatment of
retail customers by introducing:

 * A new Consumer Principle: “A firm must act to deliver good outcomes for
   retail customers”
 * Cross-cutting rules that firms must:
   * Act in good faith towards retail customers
   * Avoid foreseeable harm to retail customers
   * Enable and support retail customers to pursue their financial objectives
 * Four outcomes for the key elements of the firm-consumer relationship:
   * Price and value
   * Products and services
   * Consumer understanding
   * Consumer support
     

Treating customers fairly has long been a key regulatory requirement, but the
new Duty requires firms to be more proactive and to focus on the outcomes they
achieve for their customers. For example, the existing Principle 6 states that
“firms must pay due regard to the interests of customers and treat them fairly”,
whereas the language of the new Consumer Principle is that firms “must act”. The
FCA expects Boards to review at least annually an assessment of whether the firm
is delivering good customer outcomes in line with the Duty. All staff (except
ancillary staff) will be held individually accountable for complying with the
Consumer Principle and the cross-cutting rules via the Senior Managers and
Certification Regime (SM&CR), to the extent that is reasonable and proportionate
to their role. The rules and guidance underpinning the Duty will also give the
FCA additional avenues for enforcement.

Across the four outcomes there is a focus on vulnerable customers. This is in
line with the FCA’s existing guidance on the fair treatment of vulnerable
customers but it elevates the FCA’s expectations to the status of rules. Asset
and wealth managers should consider how they can accommodate the needs of
vulnerable investors, who for example may need to receive their money promptly
on redemption or have difficulty with a particular communication channel.

Scope

The Duty applies to products and services offered to retail clients, and it
applies to all firms that could have an impact on outcomes for retail clients,
whether or not they have a direct relationship with the retail client. So as
well as applying to products and services that are obviously retail (e.g.
authorised funds, wealth management, advice, retail platforms), it will also
apply to unauthorised funds and institutional mandates where these have
underlying retail investors (e.g. a pension fund), as well as adviser platforms.
For indirect relationships with retail clients, it applies in a way that is
proportionate to the firm’s role and impact on customer outcomes.

Asset managers that use third-party distributers often do not have direct
relationships with their end clients. However, the Duty will require them to
focus more on outcomes for end clients, taking into account the whole
distribution chain – for example, they will be required to consider value when
selecting distribution channels.

Price and value

The Duty requires product manufacturers to ensure that their products provide
fair value to retail customers in the target markets for those products, and to
consider their value assessment when selecting distribution channels.
Distributers will have to assess their fees against the extent and quality of
their services and consider whether their fees would result in a product ceasing
to provide fair value to the customer. The price and value outcome focuses on
the relationship between the price and the overall benefits of a product or
service, so firms need to consider value in the round as low prices will not
always mean fair value.

AFMs will already be carrying out a detailed annual assessment of the value that
their authorised funds deliver under the FCA's existing rules. However, the
scope of the value assessment required under the Duty is much wider, as shown in
Diagram 1.

Diagram 1: Scope of the Duty’s value assessment requirements compared to
existing rules for AFMs

Taken as a whole, this represents a significant extension of the existing value
assessment requirements. Managers of unauthorised funds, MiFID investment
managers and distributers will have to demonstrate that they are providing fair
value for the first time. AFMs that are already doing value assessments will now
be expected to consider how their distribution arrangements affect the value of
the product.

Where there is more than one firm involved in manufacturing or distributing a
product, each firm will need to work out its role in assessing value.
Co-manufacturers of a fund (e.g. where there is a delegation or sub-delegation
arrangement) must outline their respective roles in a written agreement. Where
there is more than one distributer, each firm in the distribution chain is
responsible for the prices its controls but the firm at the end of the chain
will have overall responsibility to ensure that the retail customer receives
fair value.

The increased scrutiny on value under the Duty is likely to contribute to
ongoing downward fee pressure, especially for distribution fees, which can be a
significant part of the overall price paid by an investor. For example, a high
platform fee can turn a cheap tracker into an expensive tracker, and expensive
advice could undermine the value that an investor is getting from the products
they are being advised to buy. As well as distributers having to assess the
value they are providing, manufacturers should take a view on at what point high
distribution fees undermine the value of their products. This could lead to
tougher negotiations between manufacturers and distributers.

Under the Duty, the value assessment must consider the nature of the product
(including benefits and quality), any product limitations, the total price, and
customer vulnerability in the target market. The total price includes any
non-financial costs such as providing personal data, which may be relevant to
wealth managers who use personal data to identify selling opportunities. Under
the guidance, firms should also consider cognitive and behavioural biases, such
as where an investment product’s complexity disguises high risks, high costs or
poor return prospects. Where firms have existing value assessment processes,
they will need to review them to ensure that all these criteria are considered.

Firms will need to start work early to comply with these rules by the deadline.
Assessment frameworks will need to be developed early so that there is plenty of
time for robust Board challenge. Some firms may need to source additional data
for their assessment, which can take time.

Products and services 

The requirements under this outcome largely mirror the existing product
governance rules under MiFID II and the FCA’s existing guidance on vulnerable
customers.

In its review of MiFID II product governance last year, the FCA highlighted the
need for distributers to share information with asset managers on end client
data trends, and for asset managers to challenge distributers more robustly if
this is not happening. This is an area where the industry is some way away from
where the FCA would like it to be, so it is likely to be an ongoing area of
supervisory focus.

Manufacturers are required to ensure that the design of the product meets the
needs, characteristics and objectives of the target market. In its supervisory
work, the FCA has been challenging firms on whether there is a market need for
new products, or whether they are creating them only for commercial gain. So
asset managers should continue to challenge themselves on this.

The rules under the Duty state that manufacturers must regularly review whether
any aspects of closed products may result in the firm not complying with the
cross-cutting rules. This reiterates the FCA’s focus on closed products, which
can sometimes receive less scrutiny within firms. While the FCA is not intending
to apply the Consumer Duty retrospectively, firms will need to review whether
closed products meet the requirements of the Duty on a forward-looking basis.

Customer understanding

The rules under the Duty require firms to ensure that customer communications
meet the information needs of customers, are likely to be understood by the
average customer intended to receive them, are timely and are tailored to the
audience (including characteristics of vulnerability in the intended audience).
Much of this is covered by existing rules, but under the Duty there is more
detail on what it means in practice. Importantly, the Duty also requires firms
to test communications before sending them out, and to monitor their impact
regularly, where these steps are proportionate taking into account factors such
as the scope for harm if retail customers misunderstand or overlook the
information. In addition, in one-to-one interactions with retail customers,
firms should use opportunities to check that customers understand relevant
information provided to them, particularly if the information prompts the
customer to make a decision.

In the context of asset and wealth management, key communications that require
testing and ongoing monitoring might include information on costs and charges,
fund objectives and investment policy, risk and reward profile, performance and
redemption terms. Some customer communications have a prescribed format (e.g.
the UCITS KIID or PRIIPs KID), and others require firms to communicate large
amounts of relatively complex information (e.g. the UCITS prospectus). For the
prospectus, although the content of the information is prescribed, firms can
still explain industry jargon, or highlight key information upfront and signpost
to further detail.

The FCA’s guidance states that in order to support customer understanding, firms
should make key information prominent. For asset managers advertising funds on
their website, this is likely to include information about costs and charges.
The FCA has previously found examples of asset managers putting cost information
in their marketing documents that leaves out certain charges (e.g. portfolio
transaction costs) or does not match the information in regulatory documents
such as the UCITS KIID.

Customer support

Under the Duty, firms are required to provide an appropriate standard of support
such that they meet the needs of retail customers (including vulnerable
customers), ensure customers can use the product as reasonably anticipated, and
ensure that customers do not face unreasonable barriers when contacting the
firm, amending or switching products, submitting a claim or making a complaint.

Firms are already expected to ensure that customers do not face unreasonable
post-sale barriers under the FCA’s existing Consumer Outcomes, but the Duty
spells out what this means in more detail. For example, the guidance says that
if customers face disproportionately longer call waiting times to cancel or make
changes to an existing product than to purchase a new product then this is
unlikely to be compliant. The guidance also cites unreasonable delays in making
payments to retail customers as non-compliant, which is likely to be
particularly important for vulnerable customers redeeming investments.

For some firms (including some wealth networks and platform providers), Covid-19
has lengthened wait times at customer contact centres. Since we are now two
years into the pandemic, the FCA will expect firms to have adapted to an
environment where there is more uncertainty and increased homeworking, and to be
helping customers in a timely way.

Actions for firms

We suggest that asset and wealth managers take the following actions:

 * Carry out a gap analysis against existing practices and develop detailed
   implementation plans to ensure a consistent approach across products and
   services, including any services which are outsourced or delegated.
   Prioritise activities which are likely to be most time-consuming, such as
   value assessments and communications testing.
 * Consider the implications of the Duty on their business model and strategy –
   for example, are any changes needed to products, services or distribution
   channels to ensure customers get fair value?
 * Proactively monitor outcomes for consumers across each of the Duty’s four
   outcomes and produce effective MI for the Board. Our paper - Improving
   Customer Outcome Testing | A Practical Guide for Boards - provides
   suggestions to firms on improving their approach to outcome testing. 
 * Refresh SM&CR training to ensure that staff at all levels of the firm
   understand their obligations under the Duty.
 * Consider any cultural shifts needed to ensure that the staff are proactive in
   championing good customer outcomes.

Conclusion

The Duty places a higher expectation on asset and wealth managers to be more
proactive in ensuring good customer outcomes, underpinned by individual
accountability for both senior managers and working-level staff. It also
introduces some significant new requirements, especially the rules on price and
value which are likely to contribute to ongoing fee pressure. Boards will need
to focus on ensuring that their firm has robust processes for testing consumer
outcomes, effective management information and a culture that encourages staff
to prioritise the interests of consumers. 




TAGS

centre for regulatory strategy, asset management, investment management

GET IN TOUCH

Joy Kershaw
Senior Manager
Paul Fraser
Director

GET IN TOUCH

Joy Kershaw
Senior Manager
Paul Fraser
Director
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