The FCA has confirmed it will not accept a recommendation to compensate an investor who lost money to a clone of a deauthorised firm which was incorrectly marked as registered by the FSA for 12 years.
In the final report of the case to the Complaints Commissioner, the FCA says it provided appropriate guidance on the investor’s queries last May, which they chose not to follow.
Commissioner Anthony Townsend says the investor complainant spoke with an associate in the FCA’s Customer Contact Centre last May to confirm Firm X was a regulated entity.
The complainant was a prospective investor in Firm X and allege they were informed it was a subsidiary of an Austrian group.
The complainant says the FCA confirmed it was regulated to operate in the UK on its current passporting arrangements.
A total of £13,000 was invested into Firm X by the complainant, who subsequently lost the money when it turned out fraudsters had cloned Firm X.
The FCA disagrees it is to blame, arguing the complainant had invested without awaiting a response from the Austrian regulator as it had recommended.
Austrian regulator Bundesministerium Für Wirtschaft Und Arbeit had notified former UK regulator the FSA that the passporting rights for Firm X should be revoked in 2006.
When Firm X had been registered in the UK in 2005, the FSA had accidentally reversed the order of the firm’s name.
Instead of de-registering Firm X in 2006 after contact from the BFWA, the FSA registered the firm under its correct title, creating a second firm by accident and failing to de-register the first.
Concerns about cloning began to emerge in 2018 after it was discovered there were two registered passport firms that were both Firm X when there should not have been any.
One Firm X was de-registered in 2018 and the other in February this year during which time the firm was also cloned by fraudsters.
Townsend says: “There were therefore two serious errors made by the FSA: Firm X was registered under the wrong name and instead of being de-registered, a second entry was made.”
The regulator had been aware Firm X was a risk for cloning however.
The Commissioner says the FCA had received notification that fraudsters could be targeting Firm X but that “due to timings it was unlikely that the FCA would have had an opportunity to issue an alert on the Financial Services Register prior to [the complainant’s] call to the CCC and them transferring their funds.”
The complainant later became aware FCA’s knowledge of the potential cloning of Firm X after accessing a Freedom of Information request.
Their initial complaint to the regulator was knocked back with the FCA saying it was “unfortunate” the CCC associate did not explain the passporting arrangements covered insurance related activities rather than savings ones.
The FCA says: “This still would not have had a bearing on your complaint as the advice from the associate to contact the Austrian regulator would still have been the best course of action to take.”
In the final report, he adds that the associate explained Firm X had passported into the UK from Austria and explained the home regulator was the BFWA.
“In the call during the conversation [the complainant] asked twice what they should do and both times were informed they should contact the BFWA and ask what permissions this firm had and what products it was authorised to offer.”
The CCC associate also advised the complainant to contact the Financial Services Compensation Scheme to ascertain whether it covered Firm X.
Townsend concludes: “Ultimately, you have lost your investment to fraud. However, it appears the failures of the regulator have been a facilitator to the criminal activity, and contributed to your decision to make your investment.
“The FCA register entry for this firm was seriously inaccurate. If it had been deregistered in 2006, you might not have lost your investment in the way you did.
“Had the firm not been erroneously shown on the FCA’s register it could not have been cloned in the way it was; and that the FCA CCC did not uncover the extent of the regulatory failings.”
The Commissioner recommended a payment to the complainant of 50 per cent of the loss – £6,500 – but this has been rejected by the FCA.
In a response to the final report, the FCA says: “The complainant received sensible guidance from the FCA before investing, which was not followed. As the Commissioner notes, had the guidance been followed, the complainant would not have lost their investment in the way that they did. In the circumstances, we do not think an ex gratia compensatory payment is appropriate.”