Timothy Walters

Conduct Policy

Financial Services Authority

25 The North Colonnade

Canary Wharf

London E14 5HS

4 May 2011

Dear Timothy,

AFM Response toCP11/7, C. 2, Definition of Holloway

  1. I am writing in response to this consultation paper, on behalf of the Association of Financial Mutuals. The objectives we seek from our response are to:
  • Comment on the draft definition proposed and highlight the potential limitations of the draft; and
  • Provide an alternative definition.
  1. The Association of Financial Mutuals (AFM) was established on 1 January 2010, as a result of a merger between the Association of Mutual Insurers and the Association of Friendly Societies. Financial Mutuals are member-owned organisations, and the nature of their ownership, and the consequently lower prices, higher returns or better service that typically result, make mutuals accessible and attractive to consumers.
  1. AFM currently has 57 members and represents mutual insurers and friendly societies in the UK. Between them, these organisations manage the savings, protection and healthcare needs of 20 million people, and have total funds under management of over £80 billion.
  1. We agree that the current, circular definition is of no real value, and have highlighted this in previous consultation responses. We are pleased that FSA is proposing a more rigorous definition, given its relevance to work it is undertaking in relation to Holloway contracts and the Retail Distribution Review.
  1. The definition as proposed is problematic though, and we have provided a detailed commentary on this in the Annex A. We have therefore sought to provide a revised definition, which takes account of those concerns and which reflects the proposed definition we provided to FSA in 2010 (as per the separate pdf document produced by OAC in March 2010):

  1. As the revisions demonstrate there are many variations in the way Holloway is constructed. Those variations are consistent with the original principles of Holloway and account for the way that different Holloway societies have evolved over time. This may also in part explain why previously regulators have been reluctant to force a detailed definition of Holloway contracts.
  1. The consultation paper also indicated at paragraph 2.9 that FSA intends to consult later in the year on whether Holloway contracts should continue to be exempted from COBS 20. If FSA reviews the basis by which it arrived at the current COBS 20 exemption, it will recognise that that the consultation process was incomplete. We suggest that before FSA explores this in any detail it seeks a complete understanding of the consequences of such a change. We are very happy to meet to assist with this.
  1. Wewould be pleased to discuss further any of the issues raised by our response.

Yours sincerely,

Martin Shaw

Chief Executive

Association of Financial Mutuals

Annex A: detailed comments on FSA draft definition

  1. The definition provides four requirements for a Holloway contract; our amended version takes account of the following:
  1. the first element provides a generic characteristic of an income protection policy, and link to the glossary definition for permanent health;
  2. the second bullet point relates to the other uses of the premium: we consider this list is incomplete, as the following are also intrinsic elements of the way the premium is allocated:
  3. enable the creation of surplus for the benefit of all members of a mutual company and to maintain working capital,
  4. cover the management expenses and other costs of the organisation, and
  5. allow the mutual to pay discretionary benefits to its members;
  6. the third bullet relates to the allocation of surplus to policyholders; we think extra care is needed with the wording here, as practice will vary between Holloway provider: typically, the society’s surplus is held in the unsegregated common fund of the society, from which bonuses are allocated to the policyholder’s individual account;
  7. with regard to the fourth point, it is not always the case that bonuses are allocated in direct correlation to the premiums paid.
  1. More generally, there are a number of misconceptions/ errors carried over into the commentary and proposed definition:
  1. We remain disappointed that FSA has not acknowledged the view, which we have asserted on numerous occasions, that Holloway is not an investment policy and that the return on maturity is a return of underwriting surplus (not investment). Perhaps one way of accommodating this difference of view is to alter the wording in part (d) of the proposed definition, from ‘and’ to ‘and/or’;
  2. Similarly, to understand Holloway properly, it is important to recognise that Holloway societies provide contracts and not policies;
  3. The proposed definition leaves open the possibility that organisations other than the existing Holloway societies can provide Holloway contracts; indeed the document refers to “around 12” providers of Holloway: we are only aware of nine providers open to new business and it would be helpful if FSA could clarify this and confirm our understanding that no new Holloway providers can be created;
  4. The definition and commentary do not indicate whether the new definition is to apply retrospectively or not. If it is retrospective this will cause a large number of problems, in particular it may change the tax status of existing business;
  5. The intention is for the definition to be mandatory rather than illustrative, and so all four criteria must be present before a contract can be described as Holloway; it would be helpful for FSA to confirm that a contract that has additional features can still be classified as Holloway;
  6. Similarly FSA should clarify how it would view a policy that originally met all the criteria, but through change in circumstance (for example retirement) the premiums are directed to saving rather than protection (and which would still retain their HRMC exemption); and
  7. Any definition from FSA should take account of the recognition by HMRC of the unique character of the Holloway contract.
  1. We note that it is not proposed to provide a specific glossary definition of a “Holloway exempt sickness policy”. We think that this would be useful, for consistency, as the proposed definition does not explain the nature of the exemption, which is material to its existence.
  1. It is important that any final definition takes account of the final rules proposed for the exemption of some Holloway contracts from the RDR. Similarly, FSA needs to compare its approach to HMRC with regard to the tax status of Holloway, and HM Treasury, to ensure the definition and the RDR exemption is fed into responses to consultation on Packaged Retail Investment Products (PRIPs). Unless a similar exemption is reflected in PRIPs, we understand it will be largely redundant in the RDR.

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