The Financial Conduct Authority has been branded ‘unfair’ by the Complaints Commissioner for refusing to reconsider its publication of a final notice, despite evidence it is affecting the subject’s health.
The regulator published a final notice naming an individual after a decision by the Upper Tribunal in January 2013.
According to a decision published by the Office of the Complaints Commissioner, Sir Anthony Holland the subject of the final notice had moved to Australia and secured a job with another financial services firm.
However, he was fired after being named in the final notice and had not worked since. Sir Anthony added that there is evidence the subjects health is deteriorating and that there was no evidence the regulator had assessed if it would be fair to publish the final notice.
An Upper Tribunal decision discussing the fairness of publishing the final notice said: “While the delays in bringing this case on are regrettable they have given [the complainant] an opportunity to rehabilitate himself to a degree not common in similar cases before this Tribunal.
“It would be wrong for us to impose a penalty which would have the effect of bringing this fresh start to an end.”
The complainant did not appeal the original Tribunal’s decision in 2012 which found failings at the firm where he worked, including potential mis-selling of PPI and mortage products.
However, he complained that the regulator took five months to assess his petition to have the final notice taken down, as well as the fairness of the decision to publish in the first place.
The complainant had been the subject of a raid by the regulator that involved 21 people including a number of police officers in 2007, which led to a decision notice in 2010.
Sir Anthony recommended that the FCA pay the adviser for his distress, review its procedures to make sure the fairness of decisions is properly documented, and to consider removing the final notice.
He criticised the opaque methods used by the regulator to determine whether or not it would be fair to publish a final notice.
Specifically, the regulator explained that it would normally presume to publish a notice “to ensure that the FSA/FCA is seen to be transparent in its actions and to underpin our commitment to credible deterrence...”
Sir Anthony responded that “I find [the] above worrying as it appears to display a lack of a wholly impartial approach.
“I find that the complainant has provided significant evidence to show that the decision to continue to publish the final notice is continuing to have a significant adverse effect upon his health and his financial position (he has been out of work for almost 12 months).”
However, although the FCA accepted parts of the commissioner’s findings, it rejected the claims of unfairness and said it would not remove the final notice from its website.
The regulator is not bound by recommendations made by the Complaints Commissioner.
“The disagreement reflects the FCA’s different view on the interpretation of the statutory provisions concerning the publication of final notices and what constitutes unfairness.
“We acknowledge that publication of our findings will have an impact on people but that does not make it unfair... Enforcement allows the FCA to hold to account those who break the rules and, in doing so, help protect consumers and maintain the integrity of the market.”
Sir Anthony responded that this was “a disappointing conclusion... because the statute does provide that the regulator has to be an accountable organisation given its regulatory powers over the industry and this was a complaint by the industry.”
