UK: FCA Publishes Final Guidance On 'Plevin' PPI Complaints (Pinsent Masons Insurance Briefing: 14 November 2018 )

Last Updated: 8 January 2019
Article by Colin Read, Nicholas Bradley and Alexis Roberts

The main topics we're focusing on this week are:

FCA publishes final guidance on 'Plevin' PPI complaints

Firms could be required to re-contact consumers who made an unsuccessful complaint about payment protection insurance (PPI) and invite them to make a new complaint under new guidance by the FCA. The FCA has published new guidance clarifying its approach to complaints involving regular premium PPI, where the ongoing premium payments included an element of commission which was not disclosed. The new guidance requires firms to assess whether or not repeated commission payments were disclosed to the customer on an ongoing basis, and not merely at the point of sale; and whether customers should be compensated for this. Contentious financial services expert Jonathan Cavill of Pinsent Masons said of the development: "One of the most important upshots from this consultation paper is that it confirms that there can be jurisdiction for the FOS to consider non-disclosure of commission complaints in the Plevin context, even where the sale of the PPI occurred before 14 January 2005 – the date insurance intermediation activities became regulated – on the condition that the consumer credit relationship and non-disclosure continued beyond the CCA transitional period. This confirms that the scope of the complaints handling rules in this regard is much wider than many firms previously considered." 

FCA launches market study into home and motor insurance pricing

The UK's FCA has launched a study into how general insurance firms price home and motor insurance policies. The study follows supervisory work into insurers' pricing policies which found firms failed to have appropriate strategies and control over pricing practices and activities, which meant they were unable to reliably assess and demonstrate whether they are treating their customers fairly. The FCA said differential pricing had led to some identifiable groups of consumers paying significantly higher prices than other identifiable groups of consumers with similar risk and cost-to-serve characteristics. The market study will focus on four key issues: the consumer outcomes from pricing practices; the fairness of outcomes from pricing practices; the impact of pricing practices on competition; and the necessary remedies to address any harm found. 

UK study on personalised pricing commissioned

A new UK study is to look into how businesses use data to tailor pricing offers to consumers and whether the practice helps those consumers obtain "the best deals". The study will also look at how businesses are applying personalised pricing through different mediums, such as search engines, apps or comparison tools, and "explore whether and how personalised pricing makes use of personal data points such as a consumers address, marital status, birthday and travel history", the UK government said. The government has commissioned the research, which will be supported by the country's main competition and consumer regulator, the Competition and Markets Authority (CMA). Competition law expert Alan Davis of Pinsent Masons said the CMA's economic research paper had identified 'limited evidence' of the use of personalised pricing but that a recommendation from the report had been to replicate previous studies into the practice 'using UK data'. He said it appears, therefore, that the new research project the government has announced "is to test further whether personalised pricing is more prevalent that the CMA's initial testing and analysis showed".

Driverless cars: 'digital highway code' considered in UK review

A 'digital highway code' "may be desirable" and help ensure driverless cars operate within UK road traffic laws, according to the bodies commissioned to assess what legal reforms are necessary to account for the use of autonomous vehicles. The Law Commission of England and Wales and the Scottish Law Commission said, though, that a digital highway code would be "extremely difficult to produce, given the complexity of the driving rule book and the huge variety of implicit interpretations and exceptions". The Commissions addressed the subject of a digital highway code in a new consultation paper – the first of a series of such papers they have promised during a three-year long review they are carrying out into the laws and regulations needed to support the introduction of autonomous vehicles in the UK. Ben Gardner, expert in autonomous vehicles technology and regulation at Pinsent Masons said: "The transport sector is likely to go through more change in the next five to 10 years than it has in the last 50 and, as we try to introduce these changes against the backdrop of the UK's existing regulatory frameworks, there will inevitably be obstacles, incompatibilities and grey areas. These will need to be addressed in two ways: through introducing new rules and regulations to legislate for future vehicles and use cases; and amending or removing old legislation which is not fit for purpose in the modern day."

Few corporate pension funds have climate change investment policy

Just 5% of the UK's largest corporate pension funds have a specific climate change policy, despite greater awareness of the potential impact of climate change on their investments, according to new research by Pinsent Masons. While the majority of the funds do not have specific climate change policies in place, several are creating metrics to measure climate change-related indicators or are actively monitoring the environmental impact of their investment decisions. These include carbon 'footprinting' exercises to assess the emissions produced by the scheme's investments, and similar studies. The research is based on the top 43 UK corporate pension funds for which figures are publicly available, with a total of £479 billion in assets under management. It comes ahead of the publication of a new report on climate risk and investment co-authored by DWS, Grant Thornton, Redington, the British Antarctic Survey, Bloomberg New Energy Finance and Pinsent Masons. Pensions expert Carolyn Saunders of Pinsent Masons said that, in the absence of a standardised approach to climate risk management in investments, most trustees are "unsure how best to deal with the issue". Earlier this year, Pinsent Masons and the University of Leeds published a report on how trustees currently consider climate change as part of their investment strategy. "Trustees face a number of barriers to climate risk management, including a lack of clear regulations and methodological issues. Clarity about trustee duties with regard to climate change is a priority. New regulations will make it clear that sustainability is a relevant consideration to influence the businesses in which trustees invest, whatever their personal views. It is helpful that the government has acknowledged that stewardship activities are likely to be more limited in smaller schemes." she said.

UK government confirms data protection fee exemptions

The UK government will not introduce a raft of new exemptions to the requirement to pay a data protection fee for businesses processing personal data in the country. Organisations responsible for how personal data is handled are generally obliged to pay a data protection fee each year to fund the monitoring of compliance and enforcement of data protection law in the UK. A rate of £40 for micro organisations, £60 for small and medium organisations, and £2,900 for large organisations applies, with the fee payable by all data controllers operating in the UK, unless an exemption applies. The Information Commissioner's Office (ICO) issued guidance on the topic of the data protection fee earlier this year.

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