To Finance Or Not To Finance

Consumers in the 21st century are credit savvy. Unlike their parents and grandparents, the millennial generation is less likely to save up for a new bike, lavish holiday or home improvements – they are happy to buy now and pay later. And the same is true for the caravan and camping sector.

Consumers expect to be offered credit terms when they make expensive purchases; if they aren’t, they can always turn to their credit card or apply for a personal loan, but if you can offer a ‘one stop shop’ by selling them the credit alongside their tent, you are likely to increase sales.

But consumer credit is a highly regulated business and before you can offer credit to your customers, there are a number of legal and compliance standards you will need to meet. The following sets out the key issues you will need to consider.

Becoming regulated

Most retailers do not provide credit terms themselves, they partner with one or more specialist lenders. In these circumstances, the retailer is a ‘credit broker’. To operate this way, they must either be authorised by the Financial Conduct Authority (FCA) or be an ‘Appointed Representative’ (AR) of another business (usually the lender to which you refer business) which is so regulated.

Getting regulated as an AR is quicker and cheaper than applying to be directly authorised, which requires the completion of detailed forms, the provision of considerable amounts of information and payment of a fee. In both To Finance Or Not To Financecases you will need to agree a contract with the lender, setting out your respective legal roles and responsibilities, and this is likely to include provisions under which you are obliged to compensate the lender for losses they suffer because of your acts and omissions outside the scope of the agreed activities.

Your regulatory responsibilities as a credit broker

Whichever route you choose, however, your role as a credit broker will mean you are subject to a wide range of FCA rules set out in its Handbook. You must be assessed as ‘fit and proper’ by the FCA to undertake regulated activities. You may receive compliance visits from the regulator and will need to report details about the business you write every year. A failure to comply can result in FCA disciplinary action, including fines, and in some cases may mean the loan agreements you introduce are unenforceable without a court order.

Advertising – any ‘invitation or inducement’ you make to a customer to take out a credit agreement is subject to strict rules; certain adverts must include a Representative APR or a Representative Example of the loan product you are offering.

Sales process – as a broker you have to explain the key features of the loan to the customer and take reasonable steps to ensure that it is not unsuitable for the customer’s needs/situation. You need to give them time to read the terms and conditions and must not pressurise them to take out the credit.

Your fees – in most cases retailer credit brokers don’t charge the customer for their services. Some receive commission from lenders but some don’t on the basis that their benefit is in improving their sales penetration via the credit offering. However, if you are charging the customer for the service you need their express consent to pay you and if you receive a commission for the introduction, you need to disclose this too.

Complaints – you must have a customer complaints policy and you will be subject to the jurisdiction of the Financial Ombudsman Service (FOS). When a customer complains about your credit broking  services you have to consider their complaint and issue a final response within 8 weeks, failing which they can complain to FOS which has the power to award compensation up to £150,000.

Some key risks you may not have considered
On the face of it, partnering with a lender to give your customers credit options is a win/win for everyone; you sell more, the lender gets more business and your customers can spread the cost of payment to suit them. But it isn’t quite that simple, and as a broker you need to be fully aware of the risks and responsibilities you are taking on, for example:

Section 75 rights

Just as when you buy goods on a credit card, when a customer uses credit to pay for goods and services the lender is jointly liable with the supplier for claims arising from misrepresentation or breach of contract. If suppliers go out of business, the lender will be liable for any claims from your customers, which is why lenders are often very careful to undertake due diligence on  their broker partners which supply goods and services. They also build in contractual protections to seek to claw back from the supplier any payments they have to make. Sometimes this may extend to requiring personal guarantees from directors. 

The FCA recently undertook a review of how retail credit brokers paid their staff and found that the commission and incentive/bonus schemes presented a high risk of mis- selling in 64% of cases. This is because the people selling credit to customers, sometimes in the home, were paid more if they met sales or performance targets. Even if related to the goods/services rather than the credit itself, this meant sales people were more likely to prioritise the sale over the suitability or affordability of the credit used to pay for it. The FCA has now introduced new rules which require retail credit brokers to put policies in place to ensure that their payment structures don’t risk consumer detriment.

To conclude

Selling via credit can most certainly increase the revenue a business can generate. However, there are onerous obligations to meet which, if ignored, may lead to penalties and unenforceable contracts. But get the process right and everyone wins.

Article by: Jeanette Burgess
Jeanette Burgess is Head of Regulatory & Compliance at Walker Morris LLP.

Panel: FCA guidance

The FCA has published a guidance note (see https://bit. ly/2ikygbA) which outlines the principles and process behind the regime, how firms become authorised, supervision and enforcement. The FCA explains that “we have the power to make rules that are legally binding on firms. Where we find problems, we will generally seek to work with firms to resolve issues voluntarily in the first instance. However, if we can’t agree a voluntary solution, we may rely on our formal powers in order to limit ongoing risks to consumers.” It’s worth noting that the FCA is to report to HM Treasury by 1 April 2019 on the provisions of the law relating to consumer credit that are currently in force. In other words, change may be coming.
March 7, 2019

Add new comment