Section 404A: Rules under s.404: supplementary, Financial Services and Markets Act 2000

Rules under section 404 may make provision—

specifying the activities and requirements in relation to which relevant firms are to carry out investigations under consumer redress schemes;

setting out, in relation to any specified description of case, examples of things done, or omitted to be done, that are to be regarded as constituting a failure to comply with a requirement;

setting out, in relation to any specified description of case, matters to be taken into account, or steps to be taken, by relevant firms for the purpose of—

assessing evidence as to a failure to comply with a requirement; or

determining whether such a failure has caused (or may cause) loss or damage to consumers;

as to the kinds of redress that are, or are not, to be made to consumers in specified descriptions of case and the way in which redress is to be determined in specified descriptions of case;

as to the things that relevant firms are, or are not, to do in establishing and operating consumer redress schemes;

securing that relevant firms are not required to investigate anything occurring after a specified date;

specifying the times by which anything required to be done under any consumer redress scheme is to be done;

requiring relevant firms to provide information to the FCA;

authorising one or more competent persons to do anything for the purposes of, or in connection with, the establishment or operation of any consumer redress scheme;

for the nomination or approval by the FCA of persons authorised under paragraph (i);

as to the circumstances in which, instead of a relevant firm, the FCA (or one or more competent persons acting on the FCA's behalf) may carry out the investigation and take the other relevant steps under any consumer redress scheme;

as to the powers to be available to those carrying out an investigation by virtue of paragraph (k);

as to the enforcement of any redress (for example, in the case of a money award, as a debt owed by a relevant firm).

The only examples that may be set out in the rules as a result of subsection (1)(b) are examples of things done, or omitted to be done, that have been, or would be, held by a court or tribunal to constitute a failure to comply with a requirement.

Matters may not be set out in the rules as a result of subsection (1)(c) if they have not been, or would not be, taken into account by a court or tribunal for the purpose mentioned there.

The FCA must exercise the power conferred as a result of subsection (1)(d) so as to secure that, in relation to any description of case, the only kinds of redress to be made are those which it considers to be just in relation to that description of case.

In acting under subsection (4), the FCA must have regard (among other things) to the nature and extent of the losses or damage in question.

The provision that may be made under subsection (1)(h) includes provision applying (with or without modifications)—

any provision of section 165; or

any provision of Part 11 relating to that section.

The reference in subsection (1)(k) to the other relevant steps under any consumer redress scheme is a reference to the FCA making the determinations mentioned in section 404(6) and (7) (with the firm still required to make the redress).

If the rules include provision under subsection (1)(k), they must also include provision for—

giving warning and decision notices, and

conferring rights on relevant firms to refer matters to the Tribunal,

in relation to any determination mentioned in section 404(6) and (7) made by the FCA.

Nothing in this section is to be taken as limiting the power conferred by section 404.

Section 404A: Rules under s.404: supplementary

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