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FSA outside the law?

It would seem yet again that the FSA appears to be regulating outside UK law, especially regarding the RDR requirement for IFAs who have not already done so to gain level 4 qualification by the end of 2012.

I have long thought this edict to be a restraint of trade but greater weight has been lent to the argument that this requirement is not legal and therefore not enforceable, the reason being that it disqualifies someone who is currently already qualified.

One of barrister Peter Hamilton’s recent articles in Money Marketing said the FSMA does not permit the FSA to cancel an author-isation simply because the FSA has changed its views on what the appropriate qualifications should be.

Therefore, it appears that the FSA cannot impose new qualification requirements on IFAs to enable already qualified IFAs to continue to practice.

The FSA must state that it is removing this require-ment from the RDR, given that is appears to be illegal, and that all IFAs can con- tinue to practise without further FSA hindrance.

David Barnett
DPB Independent Financial Services,
Edgware, Middlesex

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Comments

There are 4 comments at the moment, we would love to hear your opinion too.

  1. Well said David, perhaps MM will be so kind as to get a definitive answer from the FSA
    The questions being, In insisting presently Qualified IFA’s increase their Qualifications to level 4
    1) Are you breaching the law of England and Wales
    How the same question applies to Scottish law.

    .
    2) have you taken legal advise . If so will you publish the result so that we do not have to go down the route of a Freedom of information request and the FSA do not waste our fees defending the request, therefore acting in an open, honest and transparent way as they expect the IFA to do.
    Lets see some T(IFA)F to match the expectation the FSA have of us with TCF

  2. I agree with what Ron Leonard has said here. I also like the ackowledgement thatthat someone is acting outside the Law and an Outlaw historically could not expect the protectio of the Law.
    The FSA have tried to make us Outlaws, but in so doing may have acted outside it themselves
    by their own unwillingess to work within their own rules and insistance on interpreting them differently to any sane man or woman. Even in the FSAs own handbook, the ONLY way the FOS are supposed to be allowed to investigate a complaint which is timebarred is in “exceptionel circumsatnces”. The rules don’t mention the 15year longstop, but if you read them they effectively mean a client shoudl be Timebarred after 6 years other than in “exceptionnel circumstances” which the handbook actually says DISP 2.8.4 06/04/2008
    1, 2 An example of exceptional circumstances might be where the complainant has been or is
    incapacitated.
    1, 2The Ombudsman cannot
    consider a complaint if the
    complainant refers it to the
    Financial Ombudsman Service:
    (1) more than six months after
    the date on which the
    respondent sent the
    complainant its final response;
    or
    (2) more than:
    (a) six years after the event
    complained of; or (if later)
    (b) three years from the date
    on which the complainant
    became aware (or ought
    reasonably to have become
    aware) that he had cause for
    complaint;
    unless the complainant referred
    the complaint to the respondent
    or to the Ombudsman within
    that period and has a written
    acknowledgement or some
    other record of the complaint
    having been received;
    unless:
    (3) in the view of the
    Ombudsman, the failure to
    comply with the time limits in
    DISP 2.8.2 R or DISP 2.8.7 R3, 4
    was as a result of exceptional
    circumstances; or
    (4) the Ombudsman is required
    to do so by the Ombudsman
    Transitional Order; or
    (5) the respondent has not
    objected , on the grounds that
    the time limits in DISP 2.8.2 R
    or DISP 2.8.7 R have been
    exceeded3, 4, to the
    Ombudsman considering the
    complaint.
    DISP 2.8.3 06/04/2008
    1, 2The six-month time limit is
    only triggered by a response
    which is a final response. A
    final response must tell the
    complainant about the sixmonth
    time limit that the
    complainant has to refer a
    complaint to the Financial
    Ombudsman Service.

  3. Well said David, perhaps MM will be so kind as to get a definitive answer from the FSA
    The questions being, In insisting presently Qualified IFA’s increase their Qualifications to level 4
    1) Are you breaching the law of England and Wales
    How the same question applies to Scottish law.

    .
    2) have you taken legal advise . If so will you publish the result so that we do not have to go down the route of a Freedom of information request and the FSA do not waste our fees defending the request, therefore acting in an open, honest and transparent way as they expect the IFA to do.
    Lets see some T(IFA)F to match the expectation the FSA have of us with TCF

  4. If we can rely on this barristers opinion is there not a case for funding a full blown cease or desist on the F- Pack?

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