Final notice 2018: One Call Insurance Services Limited

FINAL NOTICE

To: One Call Insurance Services Limited

FRN: 302961

Address: First Point

Balby Carr Bank

Doncaster

South Yorkshire

DN4 5JQ

Date: 30 August 2018

1. ACTION

1.1. For the reasons given in this notice, the Authority hereby:

(1) imposes on One Call Insurance Services Limited (“One Call”) a financial

penalty of £684,000; and

(2) imposes, pursuant to section 206A of the Act, a restriction on One Call for a

period of 90 days from the date the Final Notice is issued, so that One Call

is restricted during that period from charging renewal fees to its customers,

which is anticipated to cost the firm approximately £4,703,000. This

restriction takes effect from 1 October 2018.

1.2. One Call agreed to settle at an early stage of the Authority’s investigation and

therefore qualified for a 30% (stage 1) discount under the Authority’s executive

settlement procedures. Were it not for this discount, the Authority would have

imposed a financial penalty of £977,147 and a restriction for a period of 128 days

on One Call.

2. SUMMARY OF REASONS

2.1. On the basis of the facts and matters described below, during the Relevant Period,

One Call failed to arrange adequate protection for its client money, breaching

Principle 10 of the Authority’s Principles for Businesses, and the Client Money Rules,

including CASS rules 5.5.3R, 5.5.5R and 5.5.63R.

2.2. One Call is an insurance intermediary, primarily selling motor and household

insurance through price comparison websites. Its business consisted of receiving

insurance premiums from customers and later paying these premiums on to

relevant insurers from One Call’s panel of insurers to secure and purchase insurance

products. One Call’s business grew substantially during the Relevant Period; its

turnover increased from £1.2 million in 2005 to approximately £30 million for the

year ended 31 October 2013.

2.3. Throughout the Relevant Period, One Call received money, in the course of its

activities as an insurance intermediary, which was client money under the Client

Money Rules. One Call was therefore required to ensure it protected that client

money, by complying with these requirements. However it failed to comply with

the Client Money Rules because One Call:

(1) failed to appreciate that certain Terms of Business Agreements it wrote

business under did not provide effective risk transfer and failed to operate

its client money account in accordance with the Client Money Rules; and

(2) more significantly, from 1 December 2009, failed to treat funds advanced

by a third party premium finance provider in respect of years two and three

of an annual motor policy with a subsequent two-year renewal price

guarantee as client money.

2.4. As a result of those failings, One Call failed to comply with the rules and

requirements of the Client Money Rules. These failures may have arisen as a result

of honest mistakes but failures to comply with these rules mean client money was

not adequately protected. Had One Call appointed a competent, knowledgeable

person (or persons) and followed industry good practice of placing this function

within an appropriately resourced finance function, the failings may not have been

as serious. The result was that, One Call inadvertently then spent for its own benefit

monies over and above those due to it in commission, fees and charges earned;

resulting in a substantial client money deficit. In January 2014, following Authority

intervention, One Call calculated that deficit as being approximately £17.3 million.

Use of client money by One Call

2.5. Despite receiving warnings from its external auditors that its treatment of client

money may have been inadequate, from December 2009 onwards One Call failed

to appreciate that monies from the T36 Policies meant it was holding client money

and withdrew client money from the account into which it was paid (the “Client

Money Bank Account”). It appears that One Call inadvertently used sums from the

Client Money Bank Account to finance its own working capital requirements, make

payments to directors and, indirectly, to capitalise a connected company, One

Insurance Limited (“OIL”) (no allegation of wrongdoing is made against OIL).

2.6. Use of these sums may have provided One Call with a competitive advantage

because it did not have to raise the funds itself and this may have enabled One Call

to offer customers lower insurance prices than its competitors which did comply

with the Client Money Rules.

Customers exposed to significant risk of loss

2.7. One Call’s failings as regards client money exposed its customers to a significant

risk of loss. The existence of a deficit meant, had One Call entered into insolvency

proceedings, the available pool of client money would have been insufficient to

refund T36 customers or pass on to insurers to effect customers’ insurance policies

for those small number of customers where effective risk transfer was not in place.

Had motor insurance policies not been effected, these customers may have been

left without compulsory insurance cover, thereby exposing them to the risk of being

unable to claim on insurance they believed they held. Those customers also faced

being asked to pay their insurance premiums twice over.

2.8. One Call identified the deficit only after a visit by the Authority and was unable to

repay this £17.3 million client money deficit on the same day that the deficit was

discovered. Following Authority intervention, One Call repaid the deficit. Had One

Call been unable to remedy the deficit, customers would have been put at an

increased risk of loss for a prolonged period of time.

Why One Call’s failures are so serious

2.9. The Authority expects insurance intermediary firms to establish and maintain

competent oversight of their client money handling arrangements at all times.

2.10. This case is particularly serious because, despite advice from the firm’s external

auditors, it took Authority intervention before One Call arranged adequate

protection for client money.

2.11. Further, if a firm introduces a variant to its mainstream insurance products, such

as One Call’s T36 Policies, due diligence of that product should cover assessing

whether that product impacts the firm’s position in relation to client money.

2.12. One Call co-operated both with the Authority investigation, and in remedying the

failings identified in this Notice, through a number of section 166 Skilled Persons

Reports, in order to ensure that its business was now in compliance with the Client

Money Rules. Those reports confirmed that One Call has made widespread

improvements in its governance framework, finance function and CASS controls

environment. In May 2015, One Call commenced a ‘wind-down’ of all its CASS

balances in order to transfer to a pure risk transfer model, which is scheduled to

conclude in March 2016.

2.13. This action against One Call supports the Authority’s operational objectives of

securing an appropriate degree of protection for consumers and protecting and

enhancing the integrity of the UK financial system.

2.14. On 13 June 2016, following settlement, the Authority gave One Call a Decision

Notice (the “Decision Notice”) which notified it that the Authority had decided to

take the above action. The length of the restriction which the Authority had decided

to impose, after application of a 30% discount for settlement at stage 1, was 121

days which was anticipated at that time to cost the firm approximately £4,620,000.

Were it not for this discount, the Authority would have decided to impose a financial

penalty of £977,147 and a restriction for a period of 182 days, anticipated to cost

the firm approximately £6,600,000, on One Call. The Decision Notice acknowledged

that the Authority considered this, together with the proposed penalty, reflected

the seriousness of the breaches.

2.15. On 11 July 2016, the Decision Notice was referred to the Upper Tribunal (Tax and

Chancery Chamber) (“the Tribunal”) by a third party and a decision in the matter

was unsuccessfully appealed to the Court of Appeal. That reference to the Tribunal

was withdrawn by the third party on 7 July 2018.

2.16. During the period of two years when the third party reference was active in the

Tribunal, One Call’s renewal business increased significantly, such that the

anticipated cost of the restriction rose to £6,300,000 by July 2018. The Authority

considers that a restriction of 90 days, after application of a 30% discount for early

settlement, anticipated to cost One Call £4,703,000, more closely reflects the

impact of the restriction anticipated at the time of settlement.

3. DEFINITIONS

3.1. The definitions below are used in this Final Notice.

“Act” means the Financial Services and Markets Act 2000;

“Authority” means the body corporate previously known as the Financial Services

Authority and renamed on 1 April 2013 as the Financial Conduct Authority;

“BIBA” means the British Insurance Brokers Association;

“CASS” means the Client Assets section of the Handbook;

“CII” means the Chartered Insurance Institute;

“Client Money Rules” means the rules set out in CASS 5.1 to 5.5 of CASS;

“Client Money Bank Account” means the bank account into which One Call received

client money;

“DEPP” means the Decision Procedure and Penalties Manual section of the

Handbook;

“EG” means the Enforcement Guide part of the Handbook;

“FCA” means the Financial Conduct Authority;

“Handbook” means the Authority’s Handbook of rules and guidance;

“New Penalty Regime” means the Authority’s new penalty regime, in force from 6

March 2010;

“OIL” means One Insurance Limited;

“Old Penalty Regime” means the Authority’s old penalty regime, in force until 5

March 2010;

“One Call” or the “Firm” means One Call Insurance Services Limited;

“Principles” means the Authority’s Principles for Businesses;

“Relevant Period” means the period 14 January 2005 to 30 September 2014;

“T36 Policies” means a motor insurance policy with a three year price guarantee,

which operated as three separate annual contracts with no obligation on the

customer to renew from one year to the next; and

“TOBAs” means Terms of Business Agreement.

4. FACTS AND MATTERS

Background

One Call

4.1. One Call was established in 1995 and operates as an insurance intermediary,

primarily selling motor and household insurance. It has been authorised and

regulated by the Authority since 14 January 2005 and was permitted to hold and

control client money only in respect of non-investment insurance contracts for the

duration of the Relevant Period.

4.2. As an insurance intermediary, One Call’s business focussed on selling motor

insurance to customers, primarily through price comparison websites. Following

receipt of insurance premiums from customers, One Call paid these premiums to

its panel of insurers to purchase insurance products. One Call received insurance

premiums both directly from its customers and from a third party premium finance

provider on behalf of the customer.

4.3. During the Relevant Period, One Call’s business grew substantially. One Call’s

turnover increased from £1.2 million in 2005 to approximately £30 million for the

year ended 31 October 2013. In January 2014, One Call had a customer base of

approximately 230,000 and it was placing approximately 300-400 pieces of new

business per day.

Client money requirements

4.4. The CASS rules were specifically created to provide confidence in the UK regulatory

regime’s ability to deliver adequate protection of client money and client assets.

The CASS rules set out the requirements with which firms must comply when

holding or controlling client assets. For insurance intermediary firms such as One

Call, those rules are set out in CASS 5. The Client Money Rules relevant to One

Call’s conduct are set out at Annex A.

4.5. Principle 10 requires firms to arrange adequate protection for clients’ money when

they are responsible for it.

4.6. In March 2007, the Authority published a “Guide to Client Money for General

Insurance Intermediaries”, aimed at firms such as One Call. The guide explained,

amongst other things, that there are two possible approaches to protecting client

money, and the requirements associated with these respective approaches.

4.7. The two possible approaches which firms can take to ensure adequate protection

of any client money it holds, including premiums, when acting as an insurance

intermediary are:

(1) the firm segregates the client money and holds it on trust in a client bank

account(s), in accordance with the Client Money Rules. If a firm fails, funds

from this account(s) are returned directly to customers or, for money

received after a firm failure, the money is used to complete the customer’s

insurance transaction, and cannot be used to reimburse other creditors of

the firm; or

(2) a risk transfer agreement is established between the intermediary broker

and the insurer which transfers the risk of a shortfall in client money to the

insurer. The effect of such an agreement is that both parties agree that the

intermediary receives the sums due to or from customers as the agent of

the insurer and therefore the insurer bears the risk for any client money

shortfalls incurred as a result of the insurance intermediary’s failure, rather

than the customer. This is because the money is deemed to have been

received by the insurer when it is received by the insurance intermediary,

and paid over by the insurer (in the event of a claim or refund) to the

customer only once the customer receives the money from the insurance

intermediary.

4.8. Firms which hold money under a risk transfer agreement for an insurer (as outlined

in paragraph 4.7(2) above) must comply with the Client Money Rules and can only

be exempt if they only conduct business under risk transfer. A firm should never

make advances of credit to itself out of a client money trust account. If a firm

wishes to co-mingle, it must follow the Client Money Rules in relation to all money

contained within the account. It must also obtain the insurer’s agreement to co-

mingle funds held under risk transfer and obtain the insurer’s consent to its

interests under the trust being subordinated to the interests of the firm’s

customers.

Conduct in issue

Inadequate assessment of risk transfer

4.9. Throughout the Relevant Period One Call:

(1) was authorised to hold client money;

(2) informed the Authority that it was holding client money; and

(3) held significant amounts of client money.

4.10. During the Relevant Period, One Call had a number of relationships with insurers

with which it did business under TOBAs. One Call’s intention was to only undertake

business with insurers where effective risk transfer was in place. Primarily on the

basis of verbal assurances from new insurers that risk transfer would form part of

the TOBA, One Call considered that it had effective risk transfer in place with all

insurers. However, it did not. Although some checks of the TOBAs were conducted,

One Call failed to identify that some TOBAs through which it placed a small volume

of business did not provide effective risk transfer.

4.11. The processes and systems One Call had in place for reviewing and approving

TOBAs for risk transfer were clearly inadequate, as these failings were not identified

until after the Authority’s visit. As such, One Call did not provide all its customers

with the protection offered by risk transfer.

4.12. However, One Call thought it was protecting client money because it paid monies

from customers into its Client Money Bank Account and only withdrew its

commissions from that Client Money Bank Account once the insurer had been paid.

4.13. Monies not covered by risk transfer were paid into the same Client Money Bank

Account as monies from customers in respect of business placed with insurers on a

risk transfer basis. The effect of co-mingling money covered by risk transfer with

money not covered by risk transfer in the Client Money Bank Account was that the

whole of that account should have been treated as client money and held in

accordance with the Client Money Rules. By failing to carry out adequate client

money calculations and by maintaining a surplus in the Client Money Bank Account,

One Call failed to comply with the Client Money Rules throughout the majority of

the Relevant Period.

4.14. These deficiencies meant that, in the event of insolvency, it would not have been

clear whether money held under these TOBAs should be treated as belonging to

the insurer or to One Call’s customers, litigation may have been required in order

to determine ownership, and it would have meant inevitable delay and expense

whilst this was resolved. Where risk transfer was not in place, One Call’s customers

faced being asked to repay insurance premiums, or having their insurance policies

cancelled.

Failure to assess the T36 Policies

4.15. From the start of the Relevant Period, One Call sold its clients annual motor

insurance policies. In December 2009, One Call introduced and commenced selling

to its renewal customers annual motor policies with a ‘three year price guarantee’,

known internally as the “‘T36 Policies”. These policies operated as three separate

annual contracts with no obligation on the customer to renew from one year to the

next. Accordingly, customers who purchased this policy entered into a contract

which had the option to renew that contract for two further years at the same price.

This ‘option to renew’ guaranteed customers that their insurance premiums would

not increase on renewal and would remain the same for a period of three years,

provided that there was no change in the customers’ circumstances.

4.16. These policies were sold by One Call and were predominantly underwritten by a

connected company, OIL. OIL is based in Malta and passports into the UK. Save

as in the circumstances outlined in paragraph 4.17 below, upon inception of the

policy, a third party premium financing company, as part of its commercial

agreement with One Call, advanced One Call with three years’ worth of customer

premiums upfront to support the three individual annual policies in advance of

receiving the premium from the customer. At the same time, the third party

premium finance provider entered into a parallel credit agreement with the

customer to collect the advanced premium in monthly or periodic instalments.

4.17. One Call also offered clients premium finance through its own internal premium

finance arrangements, although this represented a small proportion of its premium

finance business.

4.18. In January 2014, One Call estimated that approximately 46,000 customers held a

T36 Policy, which accounted for approximately 20% of its total customer base at

that time.

4.19. One Call commenced a trial of T36 Policies in December 2009, alongside its other

annual policies. This trial was successful and in mid-2010 One Call commenced

selling T36 Policies to appropriate customers. The customers paid their

monthly/periodic premiums to the third party premium financing company. When

customers cancelled a T36 Policy part way through a particular year, or the

customer was in default, or chose not to renew their T36 Policy for the following

year, under the agreement with the premium financing company One Call was

required to pay back to the premium financing company any outstanding amount

under the customer’s credit agreement. This included obtaining a premium refund

from the insurer and applying this to the outstanding balance.

4.20. However, One Call should have held all the money for years two and three it

received from the third party premium finance company as client money in

accordance with the Client Money Rules. This is because it was money received in

the course of or in connection with insurance mediation activity. It was not money

received under a contract for insurance.

4.21. One Call did not turn its mind to whether these monies might be client money; it

considered they were a debt owed by One Call to the third party premium finance

provider. As a result, it failed to recognise that the advanced premiums for years

two and three of the T36 Policies should have been treated as client money and

appropriately segregated under the Client Money Rules. In its published accounts,

One Call classified the receipts from the third party premium finance provider in

respect of years two and three of the T36 Policies as a non-insurance creditor, when

these receipts should have been classified as insurance creditors and included in

any client money calculation.

4.22. As a result of this failure, One Call did not apply the protections afforded by the

Client Money Rules to the funds received in respect of years two and three of the

T36 Policies.

One Call’s knowledge of the Client Money Rules

4.23. One Call’s knowledge of the Client Money Rules fell well below the standard which

is expected by the Authority which caused it to continually fail to appreciate the

basis upon which it held client money. This is despite having received various

warnings which should have alerted it to the need to reassess and reconsider its

approach to the treatment and handling of client money.

4.24. One Call staff members attended various compliance forums and conferences run

by the Authority, BIBA and CII during the Relevant Period at which the importance

of CASS compliance was highlighted. The materials from these forums and

conferences served to highlight the importance of ensuring TOBAs were clear and

unconditional with regards to risk transfer provisions.

4.25. Furthermore, One Call also received warnings from its external auditor that its

treatment of client money may have been inadequate. For example:

(1) in March and April 2012, One Call’s auditor highlighted to One Call that it

may have been in breach of the Client Money Rules and should perform a

client money calculation at least every 25 days followed by a reconciliation

to One Call’s records. One Call also discussed with the auditor the treatment

of T36 Policies; and

(2) in June 2013, One Call’s auditor also raised further concerns to it during an

audit of its accounts in relation to risk transfer not being in place for all

insurers, and recommended One Call to seek specific advice as to whether

any client money audit was required.

4.26. Despite these warnings, and without seeking any advice as to the validity of its

position, One Call continued to consider that effective risk transfer was in place

with all insurers. One Call considered that years two and three monies from the

T36 Policies was not client money, but was equivalent to a loan from the premium

finance provider that it could use, although this arrangement was not contained in

the contract between the two parties. It was not until the Authority visited One Call

in December 2013 that One Call reviewed the treatment of the T36 Policy

premiums.

Failure to undertake client money calculations in accordance with the Client Money

Rules

4.27. From January 2005 until 2009, One Call undertook regular calculations before it

paid its insurers. One Call thought these calculations were sufficient to determine

its requirement for client money. However, they did not comply with the Client

Money Rules. For example, the calculation did not compare One Call’s client money

requirement with its resource. Although some changes were made in 2010 to

record monies in the Client Money Bank Account, items were not fully reconciled in

the records which One Call maintained and the calculations therefore continued to

be non-compliant. These deficiencies may have resulted in One Call being unable

to determine whether there was sufficient excess for money to be transferred to

the office account.

4.28. As a result of a change in the person responsible for client money at One Call in

September 2011, One Call reviewed the calculation method used. One Call became

aware of factors missing in the calculation and it was subsequently amended. As

a result, between November 2011 and May 2013 One Call periodically performed

additional calculations. However, it failed to do these additional calculations every

25 business days as required by CASS 5.5.63(1)(a). It was only after May 2013

that One Call performed this calculation on a monthly basis. However, even when

these calculations were performed monthly, they were still not performed in

accordance with the Client Money Rules, as One Call failed to recognise that the

sums received in respect of years two and three of the T36 Policies were client

money, and consequently these amounts were not included within the calculation.

Consequences at One Call

4.29. As a result of the failings outlined above, during the Relevant Period, One Call did

not apply the protections afforded by the Client Money Rules to its client money.

From 2010, One Call frequently withdrew sums of money, which included client

money, from the Client Money Bank Account following its calculations of fees and

commissions earned on the premiums received. These withdrawals included

substantial amounts of client money that One Call was not entitled to. These monies

appear to the Authority to have been used inadvertently to fund:

(1) its own working capital requirements;

(2) payments to its directors; and

(3) indirectly, the ongoing capital to a connected company, OIL (no allegation

of wrongdoing is made against OIL).

4.30. Use of these sums may have provided One Call with a competitive advantage

because it did not have to raise the funds itself and this may have enabled One Call

to offer customers lower insurance prices than its competitors which did comply

with the Client Money Rules.

4.31. Without performing a compliant client money calculation prior to the withdrawals,

One Call was unable to properly assess whether or not the amounts left in the Client

Money Bank Account were sufficient to meet One Call’s obligations to its clients, or

whether the withdrawals generated a deficit on the Client Money Bank Account.

4.32. In fact, during the Relevant Period and because of the way One Call treated the

T36 monies, One Call withdrew substantial amounts of client money which were

funds over and above the amounts due to it from commission, fees and charges.

Due to One Call’s failure to perform an adequate client money calculation, or to

correctly identify the T36 monies were client money, it is not possible to calculate

when the Client Money Bank Account was first put into a deficit by One Call’s

withdrawals. It has also not been possible to calculate to what extent One Call

continued to maintain a deficit on the Client Money Bank Account throughout the

Relevant Period, or whether any of the payments noted in paragraph 4.29 above

consisted solely of client money. However, following a visit by the Authority in

December 2013, One Call calculated that it had a deficit of approximately £17.3

million (as at January 2014), which it was unable to repay on the same day that

the calculation was performed, in breach of CASS 5.5.63R(1)(b)(i). Following

Authority intervention, One Call repaid the deficit.

4.33. One Call’s failure to treat client money appropriately was particularly serious. The

Client Money Rules are designed to protect consumers’ money in the event of the

failure of a firm and One Call’s failings meant that this protection would not have

been offered to some of its customers. As a result of its failings, in the event that

One Call became insolvent and a primary pooling event occurred, the client money

that it held at the time would have been pooled and then distributed among

customers in proportion to the amount they paid to One Call. For the small number

of customers who did not have the benefit of risk transfer this may have meant,

for example, having to pay again for their insurance. These customers may also

have been left without compulsory insurance cover, thereby exposing them to the

risk of being unable to claim on insurance they believe they held.

4.34. One Call’s customers were also likely to have been exposed to significant delays in

receiving any funds back from One Call due to the deficiencies and lack of clarity in

the risk transfer provisions in a number of the TOBAs. It is likely that these

deficiencies could have only been resolved through litigation to determine who bore

the risk with regards to certain TOBAs, and therefore which customers were due

money from the Client Money Bank Account. Although no actual detriment

crystallised because One Call was able to pay all customers’ premiums to the

insurer when they fell due, customers’ interests still faced serious and significant

risks as a result of One Call’s actions.

5. FAILINGS

5.1. The regulatory provisions relevant to this Final Notice are referred to in Annex A.

5.2. One Call failed to adequately protect client money because it did not:

(1) ensure that the person responsible for client money at One Call had

adequate client money knowledge, including the requirements of the Client

Money Rules;

(2) appreciate that certain TOBAs it wrote business under did not provide

effective risk transfer. Where risk transfer was not in place, this put One

Call’s customers at significant risk of being uninsured, or being asked to

repay their premiums;

(3) appreciate that the premiums advanced by the third party premium finance

provider in respect of years two and three of the T36 Policies should have

been treated as client money, as they were monies received in the course

of or in connection with its insurance mediation activity as they were not

immediately received under a particular contract of insurance, and therefore

could not have been subject to risk transfer provisions. One Call also failed

to respond adequately to a number of clear warnings on this; and

(4) identify client monies as a result of paragraphs 5.2(1) to (3) above, and as

a result failed to:

(a) treat all relevant monies in the non-statutory account as client

money and have adequate systems and controls (including

governance controls) to safeguard that money;

(b) ensure that client money was segregated from One Call’s own

money at all times;

co-mingled unless written authority was obtained) and client

money;

(d) ensure it understood its fiduciary duty to safeguard client money

and how to correctly discharge that duty;

(e) perform a compliant client money calculation every 25 business

days and reconcile the balance on the Client Money Bank Account

with its records within 10 business days of the calculation;

(f) recognise a shortfall in the Client Money Bank Account and make

good this shortfall by the close of business on the day the calculation

should have been performed;

(g) ensure that the firm only withdrew money that became due and

payable to the firm; and

(h) ensure its auditor performed an annual client assets report.

5.3. For the reasons set out in paragraphs 4.1 to 4.34 in this Final Notice, as summarised

in paragraph 5.2 above, One Call breached Principle 10 by failing to arrange

adequate protection for its clients’ assets when it was responsible for them and has

breached the Client Money Rules including CASS rules 5.5.3R, 5.5.5R and 5.5.63R

during the Relevant Period.

5.4. One Call has since invested heavily in additional directors and its systems and

controls. A recent report by a skilled person observed there had been widespread

improvements in the Firm’s governance framework, finance function and CASS

controls environment.

6. SANCTION

6.1 In determining the financial penalty, the Authority has had regard to its policy on

the imposition of financial penalties which is set out in Chapter 6 of DEPP and forms

part of the Authority's Handbook.

6.2 On 6 March 2010, the Authority's new penalty framework came into force. One

Call’s failings cover a period across 6 March 2010. Significant proportions of One

Call’s conduct occurred under both the Old Penalty Regime and the New Penalty

Regime. The Authority has therefore assessed the financial penalty under both

regimes, as set out below.

6.3 Under both the Old Penalty Regime and the New Penalty Regime, in cases involving

breaches of the Client Money Rules, the Authority would ordinarily calculate a

penalty using a percentage of the daily average amount of client money or assets

held by a firm over the whole relevant period, as opposed to relevant revenue, as

revenue may not be an appropriate indicator of the potential harm caused over the

relevant period.

6.4 Due to One Call’s failure to perform regular, accurate client money calculations

throughout the Relevant Period and to appropriately identify the T36 Policies as

client money, there is limited reliable data available on which to base the

calculation. The Authority has therefore calculated One Call’s penalty using a

percentage of the monthly average of monies held in the Client Money Bank

Account between 24 January 2014 and 1 October 2014.

6.5 Based on these figures, the monthly average client money balance for One Call is

£21,242,350.

Old Penalty Regime

6.6 The period of One Call’s breach for the purposes of calculating the final penalty

under the old Penalty Regime is the period from 14 January 2005 to 5 March 2010.

References to DEPP in these paragraphs relate to DEPP as at 5 March 2010.

Deterrence (DEPP 6.5.2G(1))

6.7 The Authority views compliance with the Client Money Rules to be of significant

importance. The Authority considers there to be a continuing need to send a strong

message to the industry that firms must handle client money in a way that is

consistent with the Principles and Client Money Rules.

6.8 The principal objectives of the Client Money Rules to which this Notice relates are

to ensure that client monies are clearly identified as such and are ring-fenced from

the firm’s assets in the case of insolvency.

6.9 The principal purpose of a financial penalty is to promote high standards of

regulatory conduct by deterring approved persons who have committed breaches

from committing further breaches, helping to deter other persons from committing

similar breaches and demonstrating generally the benefits of compliant behaviour.

The Authority considers that a financial penalty would be an appropriate sanction

in this case, given the serious nature of the breaches, the significant risks created

for customers of One Call and the need to send out a strong message of deterrence

to others.

Nature, seriousness and impact of the breach (DEPP 6.5.2(2))

6.10 The Authority considers One Call’s breach of Principle 10 and associated Client

Money Rules to be serious for the following reasons:

(1) the failings resulted in a deficit of over £17.3 million at One Call;

(2) failings were found throughout One Call’s client money processes,

indicating that One Call’s client money arrangements were inadequate, for

example in its review of the TOBAs;

(3) the breaches of Client Money Rules took place over a prolonged period of

time; and

(4) had One Call become insolvent, customers not covered by risk transfer

were at risk of loss.

The extent to which the breach was deliberate or reckless (DEPP 6.5.2(3))

6.11 The Authority does not consider that One Call committed the breaches deliberately

or recklessly.

The size, financial resources and other circumstances of the firm (DEPP 6.5.2(5))

6.12 In deciding on the level of penalty, the Authority has had regard to the size of the

financial resources of One Call.

6.13 The Authority has no evidence to suggest that One Call is unable to pay the financial

penalty.

Conduct following the breach (DEPP 6.5.2(8))

6.14 For almost all of the Relevant Period, One Call failed to identify or act upon the

failings set out in this Notice.

6.15 After the visit to One Call in December 2013 and two section 166 Skilled Persons’

Reports, it took steps to consider and resolve the issues identified. Since that time,

One Call has invested in external consultants and restructured its operational model

to bring the firm into compliance with the Client Money Rules.

Disciplinary record and compliance history (DEPP 6.5.2(9))

6.16 One Call has not previously been the subject of an adverse finding by the Authority.

Other action taken by the Authority (DEPP 6.5.2(10))

6.17 The Authority has had regard to previous cases involving the failure to protect

adequately client money.

Conclusion in relation to the old penalty regime

6.18 The Authority considers that the seriousness of One Call’s failings merits a financial

penalty. In determining the financial penalty, the Authority has considered the need

to send a clear message to the industry of the need to ensure that client money is

properly protected in accordance with the Client Money Rules. Failure to ensure

that appropriate measures are in place to protect client money will result in severe

consequences.

6.19 The Authority therefore imposes a total financial penalty under the old penalty

regime of £148,696 (£212,423 before application of a 30% settlement discount)

on One Call for its breach of Principle 10 and associated Client Money Rules. This

amount is approximately 1% of the average monthly client money balances held

over the Relevant Period.

New Penalty Regime

6.20 DEPP 6.5A sets out the details of the five-step framework that applies in respect of

financial penalties imposed on firms.

Step 1: disgorgement

6.21 Pursuant to DEPP 6.5A.1G, at Step 1 the Authority seeks to deprive a firm of the

financial benefit derived directly from the breach where it is practicable to quantify

this.

6.22 The Authority has not identified any financial benefit that One Call derived directly

from the breach in connection with regulated activities.

6.23 Step 1 is therefore £0.

Step 2: the seriousness of the breach

6.24 Pursuant to DEPP 6.5A.2G, at Step 2 the Authority determines a figure that reflects

the seriousness of the breach.

6.25 In assessing the seriousness of the breach, the Authority takes into account various

factors which reflect the impact and nature of the breach, and whether it was

committed deliberately or recklessly. The Authority considers the following factors

to be relevant.

(1) Impact of the breach

6.26 One Call put customers at risk of significant losses by not handling client money in

accordance with the Client Money Rules and failing to recognise that its existing

practices resulted in a significant client money deficit at One Call. Had One Call

not been able to meet its liabilities to insurers, those customers not covered by risk

transfer faced a risk of their policy being voided unless they paid the insurer directly

for their insurance or risk becoming uninsured. If a customer is left uninsured, then

the customer might also face being unable to make a claim – this could have left

customers distressed at times when they may have been more vulnerable, for

example due to an accident.

6.27 As at February 2014 (shortly after the deficit was discovered), One Call had

approximately 230,000 policies in place.

6.28 One Call’s failings did not have an adverse effect on markets.

(2) Nature of the breach

6.29 The Client Money Rules are fundamentally important to the protection of client

money and assets. The breaches by One Call of the Client Money Rules occurred

over a significant and prolonged period of time, and were only brought to light

following a visit by the Authority in December 2013. Significantly, until the

Authority visited One Call, it did not identify that the Client Money Bank Account

had a substantial deficit. This demonstrates serious weaknesses in the firm's

management and procedures relating to dealing with client money over a prolonged

period of time.

(3) Whether the breaches were deliberate or reckless

6.30 There is no evidence to suggest that the breaches by One Call were deliberate or

reckless. Therefore it is considered by the Authority that the breaches were

negligent.

6.31 Taking all of these factors into account, the Authority considers the seriousness of

the breach to be level 4 and the Step 2 figure is 3% of £21,242,350.

6.32 Step 2 is therefore £637,270.

Step 3: mitigating and aggravating factors

6.33 Between March 2012 and June 2013, One Call received warnings from its external

auditor that it may be in breach of the Client Money Rules, which it failed to

adequately address.

6.34 The importance of compliance with the Client Money Rules and CASS has been well

publicised by the Authority during the Relevant Period, including numerous

enforcement actions which have drawn firms’ attention to the need for improved

focus on this area and the importance of protecting client money, and so the

Authority considers this to be an aggravating factor.

6.35 The Step 2 figure should therefore be increased by 20% to take into account those

aggravating factors.

6.36 There are no mitigating factors.

6.37 The Step 3 figure for One Call is £764,724.

Step 4: adjustment for deterrence

6.38 We consider that the penalty figure reached after Step 3 is suitable for the purposes

of credible deterrence when combined with the restriction outlined at paragraph

6.46 below.

6.39 Therefore, the Step 4 figure for One Call is £764,724.

Step 5: settlement discount

6.40 Applying the Stage 1 settlement discount (30%), the Step 5 figure is £535,306.

Total penalty

6.41 Having applied the frameworks set out in DEPP under the Old Penalty Regime and

the New Penalty Regime, the Authority imposes a financial penalty on One Call is

£977,147 (being £212,423 under the Old Penalty Regime and £764,724 under the

New Penalty Regime) for breaches of Principle 10 and the Client Money Rules.

6.42 When applying a 30% settlement discount to both penalties, the total financial

penalty under both regimes totals £684,000 (£684,002 rounded down to the

nearest 100).

Restriction

6.43 In accordance with DEPP 6.2, the Authority will consider it appropriate to impose a

restriction where it believes that such action will be a more effective and persuasive

deterrent than the imposition of a financial penalty alone.

6.44 Due to One Call’s failure to perform regular, accurate client money calculations and

to appropriately identify client monies throughout the Relevant Period, there is

limited reliable data available on which to calculate a penalty using a percentage of

the daily average amount of client money. The Authority has therefore calculated

One Call's penalty using a percentage of the monthly average of monies held in the

Client Money Bank Account during a period of nine months after the client money

deficit was identified. The Authority therefore considers that this figure is unlikely

to be reflective of One Call’s client money balances during the whole of the Relevant

Period, where One Call is likely to have held a significantly more client money.

6.45 The Authority therefore considers that the penalty outlined at paragraph 6.41

above is too low and One Call should not benefit from its failure to comply with the

Client Money Rules.

6.46 Pursuant to section 206A of the Act, in addition to the penalty outlined at paragraph

6.41 above, the Authority imposes a restriction on One Call’s ability to charge

renewal fees to its customers for a period of 90 days for breaches of Principle 10

and the Client Money Rules. This is anticipated to cost the firm approximately

£4,703,000. The Authority considers that this reflects the seriousness of the

breaches in this case.

7. PROCEDURAL MATTERS

Decision maker

7.1. The decision which gave rise to the obligation to give this Notice was made by the

Settlement Decision Makers.

7.2. This Final Notice is given under, and in accordance with, section 390 of the Act.

Manner of and time for Payment

7.3. The financial penalty must be paid in full by One Call to the Authority by no later

than 13 September 2018, 14 days from the date of the Final Notice.

If the financial penalty is not paid

7.4. If all or any of the financial penalty is outstanding on 13 September 2018, the

Authority may recover the outstanding amount as a debt owed by One Call and due

to the Authority.

Publicity

7.5. Sections 391(4), 391(6) and 391(7) of the Act apply to the publication of

information about the matter to which this notice relates. Under those provisions,

the Authority must publish such information about the matter to which this notice

relates as the Authority considers appropriate. The information may be published

in such manner as the Authority considers appropriate. However, the Authority

may not publish information if such publication would, in the opinion of the

Authority, be unfair to you or prejudicial to the interests of consumers or

detrimental to the stability of the UK financial system.

7.6. The Authority intends to publish such information about the matter to which this

Final Notice relates as it considers appropriate.

Authority contacts

7.7. For more information concerning this matter generally, contact Angus Griffin (direct

line: 0207 066 2646) of the Enforcement and Market Oversight Division of the

Authority.

Bill Sillett

Financial Conduct Authority, Enforcement and Market Oversight Division

ANNEX A

RELEVANT STATUTORY AND REGULATORY PROVISIONS

1. RELEVANT STATUTORY PROVISIONS

1.1. The Authority’s operational objectives, set out in section 1B(3) of the Act, include

the consumer protection objective.

1.2. The Authority is authorised, pursuant to section 206 of the Act, if it considers that

an authorised person has contravened a requirement imposed on it by or under the

Act, to impose on such person a penalty in respect of the contravention of such

amount as it considers appropriate in the circumstances.

2. RELEVANT REGULATORY PROVISIONS

Principles for Businesses

2.1. The Principles are a general statement of the fundamental obligations of firms under

the regulatory system and are set out in the Authority’s Handbook. They derive

their authority from the Authority’s rule making powers set out in the Act.

2.2. Principle 10 states:

“A firm must arrange adequate protection for clients’ assets when it is responsible

for them”.

The Authority’s policy for imposing financial penalties

2.3. Chapter 6 of DEPP sets out the Authority’s statement of policy with respect of

imposition and amount of financial penalties under the Act.

Client Money Rules

2.4. CASS sets out the requirements relating to holding client assets and money.

2.5. Set out below are the relevant extracts from CASS 5:

(1) CASS 5.1.1R CASS 5.1 to CASS 5.6 apply, subject to (2), (3) and CASS

5.1.3R o CASS 5.1.6R, to a firm that receives or holds money in the course

of or in connection with its insurance mediation activity.

(2) CASS 5.2.1G If a firm holds money as agent of an insurance undertaking

then the firm's clients (who are not insurance undertakings) will be

adequately protected to the extent that the premiums which it receives are

treated as being received by the insurance undertaking when they are

received by the agent and claims money and premium refunds will only be

treated as received by the client when they are actually paid over. The rules

in n CASS 5.2 make provision for agency agreements between firms and

insurance undertakings to contain terms which make clear when money

should be held by a firm as agent of an undertaking. Firms should refer to n

CASS 5.1.5 R to determine the circumstances in which they may treat

money held on behalf of insurance undertakings as client money.

(3) CASS 5.5.1G Unless otherwise stated each of the provisions in CASS 5.5

applies to firms which are acting in accordance with CASS 5.3 (Statutory

trust) or CASS 5.4 (Non-statutory trust).

(4) CASS 5.5.2G One purpose of CASS 5.5 is to ensure that, unless otherwise

permitted, client money is kept separate from the firm's own money.

Segregation, in the event of a firm's failure, is important for the effective

operation of the trust that is created to protect client money. The aim is to

clarify the difference between client money and general creditors'

entitlements in the event of the failure of the firm.

(5) CASS 5.5.3R A firm must, except to the extent permitted by CASS 5.5, hold

client money separate from the firm's money.

(6) CASS 5.5.5R A firm must segregate client money by either:

(1) paying it as soon as is practicable into a client bank account; or

(2) paying it out in accordance with CASS 5.5.80 R.

(7) CASS 5.5.6G The FCA expects that in most circumstances it will be

practicable for a firm to pay client money into a client bank account by not

later than the next business day after receipt.

(8) CASS 5.5.62G

(1) In order that a firm may check that it has sufficient money segregated

in its client bank account (and held by third parties) to meet its obligations

to clients it is required periodically to calculate the amount which should be

segregated (the client money requirement) and to compare this with the

amount shown as its client money resource. This calculation is, in the first

instance, based upon the firm's accounting records and is followed by a

reconciliation with its banking records. A firm is required to make a payment

into the client bank account if there is a shortfall or to remove any money

which is not required to meet the firm's obligations.

(2) For the purpose of calculating its client money requirement two

alternative calculation methods are permitted, but a firm must use the same

method in relation to CASS 5.3 and CASS 5.4. The first refers to individual

client cash balances; the second to aggregate amounts of client money

recorded on a firm business ledgers.

(9) CASS 5.5.63R

(1) A firm must, as often as is necessary to ensure the accuracy of its records

and at least at intervals of not more than 25 business days:

(a) check whether its client money resource, as determined by CASS

5.5.65 R on the previous business day, was at least equal to the

client money requirement, as determined by CASS 5.5.66 R or

CASS 5.5.68 R, as at the close of business on that day; and

(b) ensure that:

(i) any shortfall is paid into a client bank account by the close of

business on the day the calculation is performed; or

(ii) any excess is withdrawn within the same time period unless

CASS 5.5.9 R or CASS 5.5.10 R applies to the extent that the firm

is satisfied on reasonable grounds that it is prudent to maintain a

positive margin to ensure the calculation in (a) is satisfied having

regard to any unreconciled items in its business ledgers as at the

date on which the calculations are performed; and

calculated in accordance with CASS 5.5.66 R or CASS 5.5.68 R) any

amounts attributable to client money received by its appointed

representatives, field representatives or other agents and which, as

at the date of calculation, it is required to segregate in accordance

with CASS 5.5.19 R.

(2) A firm must within ten business days of the calculation in (a) reconcile

the balance on each client bank account as recorded by the firm with the

balance on that account as set out in the statement or other form of

confirmation used by the bank with which that account is held.

(3) When any discrepancy arises as a result of the reconciliation carried out

in (2), the firm must identify the reason for the discrepancy and correct it

as soon as possible, unless the discrepancy arises solely as a result of timing

differences between the accounting systems of the party providing the

statement or confirmation and those of the firm.

(4) While a firm is unable to resolve a difference arising from a reconciliation,

and one record or a set of records examined by the firm during its

reconciliation indicates that there is a need to have a greater amount of

client money than is in fact the case, the firm must assume, until the matter

is finally resolved, that the record or set of records is accurate and either

pay its own money into a relevant account or make a withdrawal of any

excess.