The Financial Conduct Authority’s Statement on Payment Protection Insurance (PPI)

Earlier in the year, the Financial Conduct Authority (FCA) announced that it would be assessing whether there was a need for further intervention in PPI complaints handling generally (Note 1), and in light of the Supreme Court judgment in Plevin v Paragon Personal Finance Ltd (‘Plevin’) specifically (Note 2), and that we would set out our views and any next steps in the summer (Note 3).

The FCA has now decided to consult, by the end of the year, on the introduction of a deadline by which consumers would need to make their PPI complaints[1] or else lose their right to have them assessed by firms or by the Financial Ombudsman Service (the Ombudsman).

The FCA intends to consult on a deadline falling two years from the date the proposed rule comes into force - which, subject to consultation, would not, we anticipate, be before spring 2016 – hence PPI consumers would have until at least spring 2018 to complain (Note 4).

The consultation will also set out our plans for a proposed FCA-led communications campaign designed to prompt consumers to complain in advance of that deadline. This will include a proposed fee rule concerning the funding of the proposed communications campaign.

The FCA has also decided to consult on proposed rules and guidance concerning the handling of PPI complaints in light of the Supreme Court’s decision in Plevin. Such complaints would also be subject to the proposed deadline.  

We will set out the full detail of these proposed rules and guidance, the evidence we have considered, our reasons for proposing them, and our assessment of their costs and benefits, in the consultation paper we will publish before the end of the year. The following summary is intended to cover the key proposals that we will consult on but, as with any consultation process, what we have set out in this Statement may ultimately be subject to change.

We have decided to issue this detailed Statement now, in advance of the consultation. We note that there has been widespread speculation about our intentions on PPI following our announcements of January and May 2015. 

Deadline and consumer communications campaign

PPI sales fell dramatically after early 2009 (Note 5).  The current rules and guidance about PPI complaint handling have been in place since December 2010.

Since January, the FCA has been gathering evidence from firms, consumers (via online surveys and discussion groups) and other stakeholders about the PPI landscape and whether it is changing. The FCA has assessed whether the current approach is continuing to meet its objectives of securing appropriate protection for consumers and enhancing the integrity of the UK’s financial system.  

The current complaints framework and our supporting supervisory work has resulted in fair redress being paid to large numbers of consumers who were mis-sold PPI in the past.  Over £20 billion redress has been paid to over 10m consumers so far (Note 6). 

However, more recently, the large scale payment of redress has been accompanied by other trends. For example, the evidence we collected indicates that:

• a high and growing proportion of complaints are made via claims management companies, with fee costs to the consumers who use them
• a high and growing proportion of  complaints relate to older sales (pre-2005 and even pre-2000), where the documentary evidence held by firms and consumers is likely to have significant gaps and recollections and oral evidence are becoming increasingly stale
• a significant proportion of complaints made turn out not to have involved a PPI sale
• a number of those consumers who told us they intended to complain, also said that they had not yet got around to doing so. The open-ended nature of the complaints-led approach appears to contribute to this consumer inertia - i.e. it does not incentivise consumers to check whether they had or have PPI or progress complaints in a timely fashion

Around three quarters of the consumers surveyed have heard of PPI as a product (74%), most of whom (77%) say they are aware of problems or issues with it. 

The FCA now considers that there is a case for intervening further in PPI and that introducing a deadline and running a communications campaign would:

• prompt many consumers who want to complain, but have not yet done so, into action, resulting in them potentially getting redress sooner, and giving some of them the opportunity to pay off costly debt; and
• bring the PPI issue to an orderly conclusion, reducing uncertainty for firms about long-term PPI liabilities and helping rebuild public trust in the retail financial sector.

The FCA also considers that such an intervention may encourage more consumers to complain directly to the firms, rather than using and paying claims management companies.

Overall, we take the view that a deadline and communications campaign would help bring finality and certainty in a way that advances the FCA’s operational objectives of securing an appropriate degree of protection for consumers and protecting and enhancing the integrity of the UK financial system.

Plevin

The FCA has also decided to consult on rules and guidance about how firms should handle PPI complaints fairly in light of the Plevin judgment concerning a claim under s.140A of the Consumer Credit Act 1974 (Note 7) about the non-disclosure by a lender of the level of commission on a PPI contract.  The proposed deadline would also apply to the handling of these complaints.

The FCA considers that the proposed rules and guidance would reduce uncertainty and enable firms to continue to take a fair and consistent approach to handling PPI complaints, whilst making it easier for the FCA to act if it becomes concerned that firms are not handling PPI complaints appropriately. Rules and guidance would also provide a clear approach which the Ombudsman could take into account when considering relevant PPI cases.

Scope

The proposed rules and guidance would only apply to PPI complaints where a claim could be made against a lender under s.140A. That means that sums must have been payable (or capable of becoming payable) under the underlying credit agreement (which the PPI covered or covers) on or after 6 April 2008 (Note 8).

Where a complaint from a consumer against the firm that sold the PPI would be upheld under our current PPI complaint handling rules and full redress paid, our proposed rules and guidance would not require a firm (whether seller or lender) to consider the complaint further and so would not result in any further redress being paid to the complainant.

However, our proposed rules and guidance would be relevant, where:

1. the complaint would be rejected by the seller under the existing PPI complaint handling rules and guidance; or
2. the seller would conclude (in respect of some single premium PPI) that paying ‘alternative redress’ was appropriate (see Note 9); or
3. the complaint is made against a lender that did not sell the PPI to the consumer.

Unfair relationship

The proposed rules and guidance would say that a firm should presume, when assessing a relevant complaint in respect of a PPI policy covering a credit agreement under s.140A, that a failure to disclose a commission of 50% or more gave rise to an unfair relationship under s.140A.

For this purpose, and regardless of the precise details of firms’ external business arrangements or internal business models and structures, we propose to define “commission” as the proportion of the total amount of premium paid in respect of the PPI contract that was not due to be passed to the insurer.

The proposed rules and guidance would also consult on providing for this presumption to be set aside in certain limited circumstances.

We propose also to consult on limited circumstances where the non-disclosure of commission of less than 50% could be regarded as giving rise to an unfair relationship under s.140A.

Redress

The proposed rules and guidance would require a firm to pay redress where it concludes that an unfair relationship under s.140A  has arisen. The FCA will consult on the key elements of redress being:

1. the difference between the commission the customer paid (eg 72% of the premium, as in Plevin) and 50% of the premium paid – i.e. 22% of premium in this example; plus
2. the historic interest the customer has paid on that portion of the premium (ie the interest paid on the 22%); plus
3. annual simple interest at 8% on the sum of 1 and 2.

This is redress that would not be paid under our existing rules and would thus be a direct financial consequence of our proposed rules and guidance.

The proposed rules and guidance will also provide for firms to consider, when they have identified that an unfair relationship within the meaning of s.140A was created by the non-disclosure, whether, in the particular circumstances of the case, they need to pay more redress than under this approach.

Financial impact

We will include our assessment of the costs and benefits of the proposed rules and guidance in our consultation. However, to provide some initial context and indication of their potential financial impact, we note that:

• most PPI complaints concern either single premium personal loan PPI or credit card PPI
• around 75% of PPI complaints currently are upheld as mis-sold under our current rules and guidance and, in almost all cases, paid full return of premium and historic interest;
• around 42% of all single premium personal loan PPI or credit card PPI sold falls within the scope of s.140A CCA
• the average commission on PPI was around 67% (for 12 large distributors in period 2002-2006, per the Competition Commission’s Report of January 2009) (Note 10)

We do not propose to require (or otherwise expect) firms to proactively review PPI sales falling within the scope of s.140A CCA or to proactively review against the new rules and guidance previously rejected PPI complaints. 

Next steps

The FCA will publish its consultation paper on the deadline for PPI complaints and on rules and guidance in light of the Plevin decision before the end of 2015. The consultation paper will include full details of the various proposed rules and guidance summarised above, the evidence we have assessed, our reasons for proposing them, and our assessment of their costs and benefits. Our proposals will be subject to a full consultation process and as such what we have set out in this Statement may not represent the final position following that consultation. We will consider any comments on this Statement as part of the consultation process.

We will continue to monitor firms’ handling of PPI complaints under our current rules. We expect firms to deal with PPI complaints promptly and fairly. We will take action where firms fail to do so.

What should consumers do?

Consumers who are unhappy about PPI should continue to complain to the firms concerned and to the Ombudsman if they are not satisfied with the response. Making such complaints is free to consumers and most people should not need to use a claims management company to assist them. Consumers who intend to complain about PPI should do so as soon as possible[1].

Notes

1. FCA Statement, 30 January 2015: The Financial Conduct Authority to gather evidence on how the PPI complaints process is working[2].
2. Supreme Court Judgment: Plevin v Paragon Personal Finance Ltd[3] (November 2014). The Court ruled that a failure by a lender to disclose to a client at point of sale the large commission payment it received from the sale of a single premium PPI policy made the relationship between the lender and the borrower unfair under section 140A of the Consumer Credit Act 1974.
3. FCA statement, 27 May 2015: Statement on Plevin v Paragon Personal Finance Ltd[4]
4. The proposed deadline would not extend time for those consumers for whom the time limits under our existing rules have already begun to run or passed (for example those consumers who have received letters from firms in the last few years which specified they had three years from receipt in which to complain).
5. PPI was sold to borrowers alongside credit products. It was meant to help repay some or all of their borrowing if they lost their income for a period (if, for example, they had an accident, became unemployed or sick, or died). The most commonly sold types of PPI were single premium policies on unsecured loans (around 48% of all PPI policies sold), credit card PPI (around 36%), and regular premium policies on loans or mortgages (around 15%).
6. Monthly PPI refunds and compensation statistics (September 2015)[5].
7. Sections 140A-C were inserted in the Consumer Credit Act 1974 by the Consumer Credit Act 2006. Section 140A provides the court with wide powers under section 140B in connection with a credit agreement where it considers that the relationship between a debtor or creditor arising out of the agreement (or the agreement taken with any related agreement) is unfair because of various things, including anything done (or not done) by or on behalf of the creditor. Sections 140A-C came into force on 6 April 2007. However, an order may be made under s.140B only in relation to an agreement under which sums were (or could become) payable on or after 6 April 2008.
8. The proposed rules and guidance on PPI complaints would not apply to complaints about any other financial products or services, even where these are, or connected to, credit agreements under s.140A.
9. ‘Alternative redress’ refers to the ‘Alternative approach to redress: single premium policies’ set out at 3.7.7E-3.7.15E in our current DISP App 3 rules and guidance.
10. See the Competition Commission’s report ‘Market Investigation into Payment Protection Insurance’ (January 2009), Appendix 4.4, Table 2 Income from PPI as % Gross Written Premium for distributors 2002-2006.

Information on the FCA

• Find out more information about the FCA[6].
• Find out How to claim for mis-sold PPI[7].
• On the 1 April 2013 the Financial Conduct Authority (FCA) became responsible for the conduct supervision of all regulated financial firms and the prudential supervision of those not supervised by the Prudential Regulation Authority (PRA).
• The FCA has an overarching strategic objective of ensuring the relevant markets function well. To support this it has three operational objectives: to secure an appropriate degree of protection for consumers; to protect and enhance the integrity of the UK financial system; and to promote effective competition in the interests of consumers.