Dispute (DISP) resolution guidance and related questions

K Billings made this Freedom of Information request to The Financial Services Authority

The request was partially successful.

From: K Billings

27 September 2009

Dear Sir or Madam,

We are seeking to better understand the FSA guidance in respect of
DTA and endowment mis-selling.

We seek to be provided with all information held in any form
whatsoever by the FSA, where the following has been discussed or
decided upon.

We are particularly, but not only (so please do not limit your
responses to only these two DISPs), interested in DISP 2.2.26G and
2.2.27 and would like to know exactly:

1. Does the FSA expect account to be taken of all contemporaneous
events in determining what is more likely than not to have
happened? For instance if the firm at the time in its
contemporaneous documentation allowed for choice and made no
reference to foreseeable need with regard to DTA?

2. Does the FSA consider that there are instances where DISP
guidance can be disregarded? In particular if contemporaneous
documentation of the time is entirely contrary to a DISP, for
example where one makes it mandatory based on a set of
circumstances and the other allows for complete free choice.

3. Are there instances where FSA guidance could override
contemporaneous statements made by a firm? If so, please give some
examples of where this might be the case.

4. Can hindsight be used in any decision-making process related to
events of, say, two decades ago? If yes, please give examples of
where this might be the case

5. How does the FSA define both ‘foreseeable’ and ‘need’?

6. What specific factors does the FSA expect to be taken into
account when assessing a claimants' 'foreseeable need' for life
assurance?

7. How exactly does the FSA define whether someone is 'financially
dependent' on another person, for example does it use the standard
legal definition of marriage or civil partnership?

8. Does a claimant need to have dependents for the FSA to deem DTA
to be applicable?

9. Would the FOS see two (or more) single people as being
financially dependent on one another if they purchased a house
together as tenants in common?

10. Would the FSA determine that those individuals were dependent
to the extent that they must have DTA?

11. What factors would lead the FSA to determine that single people
were financially independent of one another?

12. How does the FSA define 'more likely than not'?

13. What does the FSA consider should be included in “a comparison
of monthly outgoings”? For instance if the monthly costs on an
actual endowment comprised monthly premium plus monthly mortgage
interest and a hypothetical repayment mortgage uses the exact total
of those two amounts, does the FOS deem that DTA can then be
deducted in spite of the costs on both sides of the equation being
identical? OR would the FOS consider the deduction of DTA to be
double-counting?

14. Can 'foreseeable' be used as a reason for speculating about any
possible future events other than death in order to support
decisions?

Yours faithfully,

Ms Billings

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From: IMFreturns
The Financial Services Authority

15 October 2009

Our Ref: .ISS01108533

In order that we can deal with this matter as quickly as possible please do not delete the Subject line of this email when you reply. You can add further wording to it but please do not Remove "ISS01108533".

Dear Ms Billings

Thank you for your email dated 27 September 2009, addressed to the Freedom of Information department. The Customer Contact Centre has been asked to respond.

You have written to the Financial Services Authority (FSA) with questions relating to the Dispute Resolution (DISP) handbook. In particular your questions relate to DTA and endowment mis-selling.

Firstly, I would like to thank you for taking the time to prepare and send us your enquiry. Regrettably, due to a high level of correspondence, the FSA has recently experienced difficulty in replying to correspondence within the 12 working days that we aim for. I would like to apologise for this delay and wish to assure you that we are working hard to address this.

Unfortunately, we are not currently in a position to send a response immediately. I want to assure you, however, we endeavour to provide consumers and firms with a complete answer for all of their queries and therefore, we often seek guidance from other departments. I can confirm I have sought guidance and assistance from our DISP policy area.

We will send you our final response in due course.

Please accept my apologies for the continued delay.

I trust this is of assistance.

Yours sincerely

Nicholas Offord (Mr)
Customer Contact Centre
Financial Services Authority
Firm Helpline: 0845 606 9966
www.fsa.gov.uk

Let us know what you think of the service provided by the Customer Contact Centre by sending your comments to: [email address]

The Financial Services Authority will shortly be carrying out a customer satisfaction survey which is being conducted by an independent research company. You may be asked to provide feedback on the handling of your query and the response you received.

For help to complete your regulatory return or for any other aspect of the FSA's rules and guidance please use the below link to the Industry Training section of our website. This details all of the training courses being run by FSA and includes forthcoming workshops, e-learning and events. http://www.fsa.gov.uk/Pages/Doing/Events...

All firms should now be doing transactions with us via Firms Online. If you are not already doing so, please register as soon as possible. Further information can be obtained at http://www.fsa.gov.uk/firms_online

We would ask you to treat any communication from us as confidentially as you would want us to treat communication from you. If you are not an intended recipient, please notify [email address] immediately. You should know that some of our communications may contain confidential information which it could be a criminal offence for you to disclose or use without authority. This e-mail is not intended nor should it be taken to create any legal relations, contractual or otherwise. The Financial Services Authority
25 The North Colonnade, Canary Wharf, London E14 5HS United Kingdom Registered as a Limited Company in England and Wales No.1920623. Registered Office as above
Switchboard: 020 7066 1000
Web Site: http://www.fsa.gov.uk

This communication and any attachments contains information which is confidential and may be subject to legal privilege. It is for intended recipients only. If you are not the intended recipient you must not copy, distribute, publish, rely on or otherwise use it without our consent. Some of our communications may contain confidential information which it could be a criminal offence for you to disclose or use without authority. If you have received this email in error please notify [email address] immediately and delete the email from your computer.
The FSA reserves the right to monitor all email communications for compliance with legal, regulatory and professional standards.
This email is not intended to nor should it be taken to create any legal relations or contractual relationships. This email has originated from
The Financial Services Authority (FSA)
25 The North Colonnade,
Canary Wharf,
London
E14 5HS
United Kingdom
Registered as a Limited Company in England and Wales No.1920623.
Registered Office as above
Switchboard: 020 7066 1000
Web Site: http://www.fsa.gov.uk
*****************************************************************

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From: K Billings

16 October 2009

Dear IMFreturns,

Your Ref: ISS01108533

I find it a little concerning that several aspects of FOI
legislation do not appear to be being adhered to here. I am
expecting a response in 20 days but there is no reference to this
time limit in your response here, nor your response to an earlier
FOI of mine. Nor is there any indication as to when I am likely to
get a response.

Indeed there appears to be a view within the FSA that a request for
information can be removed from the FOI system and treated as a
customer services request, as if the two are different. Any request
for information held by the FSA and put in writing technically
falls under FOI.

You should also be aware that your technical application of FOI
leaves a great deal to be desired in my view. Your FOI form on your
web site breaches both FOI and DP legislation in that it insists on
being provided with a name, an address, etc. when this is not
required under the FOI Act 2000 and indeed is 'excessive data
collection' under the DP Act 1998. An email address is all that is
needed for responding to an electronically submitted request and
you have no right to know who the requestor is or their reasons for
making their request(s). Your form in my view should be amended to
make this clear, open and transparent to all those who approach you
via this route.

These are just a few points in the spirit of helpfulness.

K Billings

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The Financial Services Authority

16 October 2009

Attachment Re Freedom of Information request Dispute DISP resolution guidance and related questions.txt
7K Download View as HTML

Thank you for your email. We will endeavour to respond to your query within 12 working days from the date of receipt. If your firm is submitting information only or reporting documentation this will be logged and forwarded to the necessary department who will contact you if any further information is required. Customer Contact Centre, Small Firm & Contact Division, Retail Markets Business Unit

This communication and any attachments contains information which is confidential and may be subject to legal privilege. It is for intended recipients only. If you are not the intended recipient you must not copy, distribute, publish, rely on or otherwise use it without our consent. Some of our communications may contain confidential information which it could be a criminal offence for you to disclose or use without authority. If you have received this email in error please notify [email address] immediately and delete the email from your computer.
The FSA reserves the right to monitor all email communications for compliance with legal, regulatory and professional standards.
This email is not intended to nor should it be taken to create any legal relations or contractual relationships. This email has originated from
The Financial Services Authority (FSA)
25 The North Colonnade,
Canary Wharf,
London
E14 5HS
United Kingdom
Registered as a Limited Company in England and Wales No.1920623.
Registered Office as above
Switchboard: 020 7066 1000
Web Site: http://www.fsa.gov.uk
*****************************************************************

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From: K Billings

28 October 2009

Dear Sir or Madam,

Regarding my request for information sent to you on 27 September, I
was expecting a response by 23 October 2009 as required of you by
the law.

You have not sent me my information, nor have you given any
indication of which exemptions (if any) might be being considered
by you as the reason for withholding or delaying some/all of my
requested information.

Although you have also breached the FOI Act 2000 by not advising me
of my internal review rights, I write to you now to formally
request an internal review ie. I am appealling your failure to
provide any of the requested information within the required
deadlines.

Unless I receive a satisfactory response to my requests, I advise
that I will be referring your failures to the Information
Commissioner's Office.

Yours faithfully,

K Billings

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From: Freedom of Information
The Financial Services Authority

28 October 2009

Attachment Freedom of Information Right to know request.txt
0K Download View as HTML

Dear Sir / Madam,

As advised in our email to you on 8 October 2009, your request for
information is being dealt with by the FSA's consumer contact centre. I
attach a copy of this email again.

Your latest email has been forwarded to them and they will respond to
you in due course.

Yours sincerely

Information Access Team

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From: IMFreturns
The Financial Services Authority

29 October 2009

Our Ref: PC62476.ISS01108533

In order that we can deal with this matter as quickly as possible please do not delete the Subject line of this email when you reply. You can add further wording to it but please do not Remove "ISS01108533".

Dear Ms Billings

I refer to my previous e-mail dated 15 October 2009, in which I explained the Customer Contact Centre was unable to answer your queries at the time, as we were seeking guidance and assistance from other departments, to enable us to provide you with a full and final response.

I can confirm that we are now in a position to provide you with that response. I would like to apologise for the extended delay in responding to your enquiry.

Your response on 16 October queried why your query was not being addressed as a Freedom of Information (FOI) request. We have consulted our General Legal Division and given that the nature of the request relates to a series of questions relating to FSA policy, the decision was made that it should be dealt with under 'business as usual' rather than as an FOI request.

You asked questions about the guidance on handling mortgage endowment complaints. This is now at Appendix 1 of the Dispute Resolution: Complaints sourcebook (DISP) in the FSA Handbook, and is available online at: http://fsahandbook.info/FSA/html/handboo...

We cannot provide detailed advice on the interpretation of the rules and guidance in the FSA Handbook. However, in order to get a better idea of the purpose of this guidance, you may find it helpful to look at the original consultation paper on this guidance which was published as CP 75 in November 2000. The policy statement setting out the final position was published in May 2001. Both documents are available on the FSA website at: http://www.fsa.gov.uk/Pages/Library/Poli...

If you do have a complaint about a mortgage endowment policy, I would suggest that you take it up with the firm concerned. Firms are expected to take account of the guidance at Appendix 1 of DISP in assessing financial loss and appropriate redress when they uphold a complaint concerning the sale of an endowment policy for the purposes of repaying a mortgage. If you are not happy with the response you receive from the firm, you may be able to take your complaint to the Financial Ombudsman Service. The FSA leaflet "Just the Facts about Endowment Mortgage Complaints" provides further information about this and is available on the FSA website at: http://www.moneymadeclear.fsa.gov.uk/pub...

I trust this is of assistance and once again, please accept our apologies for the delay in this response.

Yours sincerely

Nicholas Offord (Mr)
Customer Contact Centre
Financial Services Authority
Firm Helpline: 0845 606 9966
www.fsa.gov.uk

Let us know what you think of the service provided by the Customer Contact Centre by sending your comments to: [email address]

The Financial Services Authority will shortly be carrying out a customer satisfaction survey which is being conducted by an independent research company. You may be asked to provide feedback on the handling of your query and the response you received.

For help to complete your regulatory return or for any other aspect of the FSA's rules and guidance please use the below link to the Industry Training section of our website. This details all of the training courses being run by FSA and includes forthcoming workshops, e-learning and events. http://www.fsa.gov.uk/Pages/Doing/Events...

All firms should now be doing transactions with us via Firms Online. If you are not already doing so, please register as soon as possible. Further information can be obtained at http://www.fsa.gov.uk/firms_online

We would ask you to treat any communication from us as confidentially as you would want us to treat communication from you. If you are not an intended recipient, please notify [email address] immediately. You should know that some of our communications may contain confidential information which it could be a criminal offence for you to disclose or use without authority. This e-mail is not intended nor should it be taken to create any legal relations, contractual or otherwise. The Financial Services Authority
25 The North Colonnade, Canary Wharf, London E14 5HS United Kingdom Registered as a Limited Company in England and Wales No.1920623. Registered Office as above
Switchboard: 020 7066 1000
Web Site: http://www.fsa.gov.uk

This communication and any attachments contains information which is confidential and may be subject to legal privilege. It is for intended recipients only. If you are not the intended recipient you must not copy, distribute, publish, rely on or otherwise use it without our consent. Some of our communications may contain confidential information which it could be a criminal offence for you to disclose or use without authority. If you have received this email in error please notify [email address] immediately and delete the email from your computer.
The FSA reserves the right to monitor all email communications for compliance with legal, regulatory and professional standards.
This email is not intended to nor should it be taken to create any legal relations or contractual relationships. This email has originated from
The Financial Services Authority (FSA)
25 The North Colonnade,
Canary Wharf,
London
E14 5HS
United Kingdom
Registered as a Limited Company in England and Wales No.1920623.
Registered Office as above
Switchboard: 020 7066 1000
Web Site: http://www.fsa.gov.uk
*****************************************************************

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