Emma Ann Hughes 

What the FCA needs to do about phoenixing

Emma Ann Hughes

Emma Ann Hughes

The Financial Conduct Authority (FCA) revealed plans to take a tougher stance against phoenix companies this week.

Phoenix companies arise from the ashes of collapses that leave creditors, customers, tax authorities and in the financial advice industry - because of the existence of the Financial Services Compensation Scheme – rival businesses, out of pocket.

The FCA's moves come four months after Thirsk and Malton MP Kevin Hollinrake flagged in the Houses of Parliament that two of his constituents lost money after being advised by adviser Scott Robinson, who owned and operated a firm called TBO Investments until 2016.

Mr Hollinrake said despite a complaint to the FCA, a successful claim to the Financial Ombudsman Service and it being established that Mr Robinson was providing advice without the required professional indemnity insurance, he remained an approved person on the FCA Register.

Mr Robinson stayed on the register even though he had closed his previous firm to open a new one, called Mount Sterling Wealth, taking his clients with him.

This week the FCA finally revealed what steps it was taking to combat phoenixing.

Speaking at the Personal Investment Management & Financial Advice Association (Pimfa) fintech conference, Nick Cook, the regulator's head of regtech and advanced analytics, said the FCA was able to use analytics to help it spot when a firm might be a phoenix.

This involves analysing data to spot trends and patterns, plus hopefully identifying where a firm is resurfacing with a different identity.

While nobody would dispute that it is a good thing for the FCA to up its game and get better at spotting phoenixing, this is just spotting the mess rather than tackling what created it in the first place.

The regulator needs to tackle why companies are doing this.

When the going gets tough, some individuals just get going and don't care about the carnage they leave behind for their rivals to pick up.

Such individuals will go bust, resurface, go bust and resurface again and again.

That isn't acceptable and needs to be stopped.

But while today's regulators can look back at past advice and view it with the benefit of hindsight, plus liabilities can 'haunt' advisers forever, there will be phoenixing from individuals who do care about their clients but feel shutting shop and reopening elsewhere is their only choice.

Why should individuals who failed to make a success of one venture be prevented from ever re-entering the industry and having another chance to do right what they once got wrong?

Problems obtaining professional indemnity insurance - which are because advisers operate in an industry with no longstop - is behind some of the phoenixing.

The FCA needs to think again about the longstop, as well as improving its systems to spot how many faces keep leaping from one failed firm to the next.