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.
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.
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.
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.
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.
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.