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Advisers want FSA guidance on what terminology to use in client agreements after it contacted two firms over unfair contract terms (UCTs).
AP Financial Services and chartered financial planners Beacon Financial agreed to redraft a commission clawback clause in their standard terms of business (ToB) letters after clients complained.
It was the third time in 12 months the FSA has written to financial advisers over UCTs.
It intervened in January last year following ToB letters IFA network The On-Line Partnership, now trading as IN Partnership, had as standard across its 220-firm adviser base.
In that case, it recommended the company change a ToB term that read ‘I confirm that I have received, read and understood this agreement and agree to the terms set out within' to an alternate phrase.
Last year, the regulator unveiled an optional template for its combined IDD and menu document, but it does not issue guidelines for ToB or client agreements.
"Guidelines should be issued because client agreements form a key part of TCF," says Derek Frost, owner of Surrey-based IFA The Melia Partnership.
"We are only provided with examples of good and bad practice, and advisers may interpret TCF principles differently."
Martin Bamford, managing director of Informed Choice, says his firm changed its client agreement terms following The On-Line Partnership's undertaking.
"Individual firms do have, and should have, the freedom to tailor their contracts accordingly," he says. "But I think the wording of client agreements should be subscribed to some extent."
Some advisers, including Churchouse Financial Planning founder Keith Churchouse, say client agreement guidelines would be unhelpful because firms operate differently.
The FSA's actions have again raised the issue of caveat emptor - or buyer beware.
Some advisers argue consumers are afforded too much protection in financial services and claim the financial ombudsman (FOS) pursues a "guilty until proven innocent" agenda against advisers.
Richard Gough, director and compliance officer at Castle Court Consulting, says: "I don't think the balance is fair. But you have to remember there are some clients for whom a piece of advice will be complicated and others for whom that same advice will be fairly straight forward."
Churchouse says pressure should be "brought to bear" on both sides. "The FSA has done a lot on the financial education side, which is great, but the sole objective is that we end up with a lot more satisfied clients, and that is all that matters."
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| Comment | Advisers raise caveat emptor concerns after FSA ToB rulings |
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Client agreements
The FSA's "guidance" if you ask for it is to quote back what they say you can't do as they did when we issued our Client agreements explaining about the 15 year longstop, which DOES apply for unregulated work and I suspect in due course, even the FSA will have to recognise (correct me if I am wrong, the FSCS DOES apply a longstop and hence clients need to be informed about it). We are having to resign from our local trading standards "Buy with confidence scheme" because the FSA will not condemn or condone the specific wording we have shown them and hence Trading Standards (part of teh Office of Fair Trading), cannot comment on the documents either they say (whera in the past, they suggested changes having compared our previous Terms to the Unfair contract terms legislation and only suggested one line was changed! The whole system is a farce..... I now have sound recordings of the clients I have discussed our new terms with, including explaining the FOS ignorance of the longstop and breach of our Human Rights and not ONE client agrees infinite right to take a complaint forward is fair and hence have signed terms which wiull come in to force from April accepting from the moment they last seek or received advice from us, contracturally they only have 15 years to complain about professional negligence, just as they would with their solicitor, accountant, architect or whoever (even the FSA itself!)
Posted by: Phil Castle
Client agreements
Phil, good for you. Would you like to find a way of posting the wording of the effective clauses? If some of us would like to show a united front it would be a shame to afford the FSA the opportunity to nitpick over different wording. By the way, perhaps you might get some of the clients who agreed with your stance to write to the FSA (c/o the inimitable Hector S. perhaps) saying that no honest client would have any intention of ever complaining after so long and would the FSA therefore please write back to them with their reasons for this policy - just in case they have missed anything they should be aware of... It should be interesting to see how the FSA deals with individual members of the public that it is supposed to be supporting. I suspect they won't even get a courtesy letter worthy of the name and certainly not a sensible explanation. Still, if they dug themselves a hole it would perhaps help focus Cameron's mind when he came to think again over whether to disband them, as I am sure you could find a way to get any suitably damning letters into his office.
Posted by: Orlando Furioso
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Politically incorrect affects FSA views
If an IFA does the job for the client then he should get paid. Just like the regulatory staff get paid even for failures. Bring back caveat emptor as some clients know how to abuse the system and then clients may get more involved as they should.
Posted by: Incompetent Regulators Awards Team