Endowment Mis-selling Claim Dismissed

IoM Today reports that a couple have lost their claim of alleged mis-selling by an Isle of Man based insurance firm.

Keith and Nicola McSween took out an endowment policy with Royal London in 1991 as an investment vehicle to repay their mortgage.

They claim their financial adviser told them that the policy would provide a guaranteed £32,500 plus £40,000 substantial lump sum on maturity.

The McSweens claim there was no mention of premium increases up to 10% each year and no mention there could be a shortfall.

Their premiums were increased from £55.78 a month to £67.48 to cover a shortfall and ultimately the policy paid out £32,500 but with a lump sum of only £7,622.

’We genuinely believe that we were mis-sold our Royal London endowment policy like many other thousands of people up and down the country,’

Royal London said that the policy was arranged through an independent financial adviser.

It denied that the policy guaranteed payment of a lump sum of £40,000 and that periodic reviews of investment performance would be carried out to see whether the policy would reach the target amount on maturity.

If a shortfall was likely, the sum assured would be increased as would premiums.

Royal London said it wrote to the claimants at regular intervals from May 2005 to July 2009 to advise of a risk of shortfall on maturity due to the performance of the underlying investments and assumptions as to future investment growth.

Deemster Andrew Corlett ruled the claim was made well out of time.


Deemster Corlett said he had not been satisfied that the financial adviser misrepresented the position with the premiums by saying that they would not under any circumstances increase.

’In making these findings, I do not consider that the claimants gave misleading evidence.

More likely it is that Mr McSween in particular has over the years convinced himself that certain things were said at that long-distant meeting, which I have found to be improbable.’

In his judgment, Deemster Corlett said:

’I conclude that the claimants’ claim must be dismissed.

As I have explained, not only does the claimants’ case fail on the factual allegations made, but in addition and as a matter of law, the claim has been brought well out of the time permitted by Tynwald in which to bring legal action, and furthermore the asserted claim for damages is misconceived as a matter of law.’

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The Interest Only Timebomb

As many interest only mortgages (which were meant to be covered by endowment policies) mature in the next few years, many people are facing significant debts that they cannot afford to repay because of the dismal performance of these endowment products.

An analysis of Financial Services Authority (FSA) figures shows that of the 150,000 interest-only mortgages a year that are due to mature in the next eight years, 60,000 are likely to be in shortfall. Of these 42,000 will be in the names of people over the age of 60 either at or close to retirement.

When faced with a shortfall there are a number of options that may be available to the hapless debtor, including the following:

- sell the home, use the proceeds to pay off the shortfall and downsize, or
- negotiate an extended term for the shortfall portion of the mortgage with the lender, or
- look into the possibility of a lifetime mortgage/equity release scheme.

Richard Evans of the Telegraph has provided some helpful background on equity release schemes here.

Endowment Policies Fail

As per This Is Money:

"Up to 360,000 families may be forced to sell their home this year because record numbers of endowment policies have failed to deliver.

In many cases, these homeowners are seeing endowments fall £100,000 short of what they were promised."

L&G Talk Bollocks!

Legal and General (L&G) have sent me a summary of the performance of my two "with profits" (a misnomer if ever there was one) polices that I have with them.

They mature this year and, in theory, are meant to cover a £75K mortgage.

Based on the less than stellar performance to date, as outlined in the bonus statement for 2011, I estimate that the shortfall will be around £30K; ie a percentage shortfall of 40%!

This spectacularly poor performance is "odd" given what L&G say about themselves:

"You have one of the UK's leading fund management groups looking after your money.

The With Profits Fund aims to even out some of the short-term ups and downs of investing, helping you to plan for your future."

Complete and utter bollocks!

Do these people really believe their own bullshit?

The Endowment Shortfall Timebomb

An analysis of Financial Services Authority (FSA) figures shows that of the 150,000 interest-only mortgages a year that are due to mature in the next eight years, 60,000 are likely to be in shortfall. Of these 42,000 will be in the names of people over the age of 60 either at or close to retirement.

Source The Independent

Endowment Shortfalls FAQ's

I am regularly asked by loyal readers about what can be done about endowment policies that are going miss their target (ie shortfall). This is therefore a good time to remind everyone as to what the Financial Services Authority (FSA) recommends.

Here is the relevant page from their website reproduced in full. Remember this is their advice (not mine):

This page contains frequently asked questions about mortgage endowments. These FAQs are correct as at date of publication. They are not individual guidance and only summarise information from our rules. Choose the topic area for the relevant questions and answers

1. Claims Management Companies
2. Compensation
3. Complaints
4. Financial Ombudsman Service and the Financial Service Compensation Scheme
5. FSA's actions
6. Projections between 1988 and 1994 including the 'LAUTRO charges' issue
7. Projection rates
8. Scottish solicitors
9. Time-barring

Claims Management Companies

Are claims management companies regulated by the FSA? One company quotes 'Regulated by the Law Society and registered with the FSA' on its letterheads.

We do not regulate claims management companies (CMCs) in respect of claims management activities. However, some claims management companies are regulated by us for other activities. These are often in the field of general insurance; for instance, some sell 'after the event' insurance.
We can exercise powers over CMCs in relation to certain aspects of their claims management business, even if it is not a regulated activity. We and others, including the Office of Fair Trading (OFT), can take injunctive action under Part 8 of the Enterprise Act 2002 in respect of misleading advertising. However, to date, we have agreed that the Advertising Standards Agency (ASA) should take action in the first instance.

We also have an interest where CMC activities may have an impact on a regulated firm, or consumer interests in relation to regulated activities. Our rules in DISP provide that a complaint may be brought by a third party on a consumer's behalf, and firms must have in place and operate appropriate and effective procedures for handling expressions of dissatisfaction from, or on behalf of a consumer about a firm's provision of, or failure to provide a financial service.

From April 2007 CMCs operating in England and Wales must be authorised by the Ministry of Justice.
Related information:
Ministry of Justice
DISP Handbook

What is the FSA's position on Claims Management Companies?

Some consumers may choose to use the service of a third party such as a claims management company (CMC). We believe it is important that the consumer makes an informed choice in these circumstances – i.e. understands that there are likely to be costs involved in using a third party, and what those costs are. CMCs generally charge a percentage of any compensation awarded; some also charge an upfront fee.

In our consumer information we emphasise that consumers can access free complaints procedures through the firm, and then the Financial Ombudsman Service (FOS) if necessary. We require firms to have robust complaint handling procedures and firms are expected to treat their customers fairly.

Compensation

Can you explain how compensation is calculated?

We have issued guidance to firms on how they should handle endowment complaints and calculate redress where appropriate. This sets out a standard approach, but does not remove the firm's obligation to consider calculating redress in the most appropriate manner given the facts and circumstances of the case.

Compensation is intended to put a consumer in the position they would otherwise have been in, had the inappropriate advice not been given. Generally speaking this is likely to mean that the consumer would have taken out a repayment mortgage, possibly with associated life cover. No compensation is due if the consumer is not worse off.

The calculation involves comparing the mortgage interest and endowment premiums actually paid, and the surrender value of the policy, with what would have been paid out under an equivalent repayment mortgage, and how much capital would have been repaid. A range of other factors may also need to be considered, such as the need for life assurance or whether the policy runs into retirement. Firms may also, in some circumstances, take into account 'savings' in assessing the amount of redress paid. This occurs where the monthly cost of an endowment mortgage was cheaper than the equivalent repayment mortgage. Firms that take account of savings have to explain this to consumers in writing.

If a consumer does not understand a compensation calculation, or they think there is an error in the calculation, they should contact the firm to ask for a breakdown of the figures. If they are still unhappy with the firm's response they can refer their complaint to the FOS.

The FOS has published information on its website about calculating redress in more complicated cases.

We are unable to investigate or review individual complaints. However, we do produce a consumer factsheet on mortgage endowment complaints, which includes more information on compensation.

Related information:
Complaints factsheet
FOS

I have been offered compensation but it doesn't amount to my shortfall -why is that?

The purpose of compensation is to place the complainant, as far as possible, in the position they would have been in today had the inappropriate advice not been given – usually this means that the consumer would have taken out a repayment mortage instead. Compensation is not based on what you expected the policy to be worth.

Our consumer factsheet on mortgage endowment complaints, which covers compensation (and the FAQ above on how compensation is calculated) may be useful.
Related information:
Complaints factsheet

The company investigating my complaint about mis-selling says it needs to take my current financial situation into account to determine the compensation I get. Is that right?

Redress for upheld mortgage endowment complaints aims to put the complainant in the position they would have been in had the inappropriate advice not been given. It does not seek to penalise firms, or to award 'damages'. On this basis, our rules and guidance (in the DISP Handbook) set out a standard approach to calculating redress.

So, when assessing if you have suffered a loss, the firm should not only assess your relative capital shortfall or surplus, but also calculate the relative expense of the two repayment methods. If the monthly outgoings on your endowment mortgage are lower than an equivalent repayment mortgage, the firm may take account of such 'savings' in calculating redress.

The rules under which firms may be able to take account of 'savings' are detailed in DISP App 1.2.7 to 1.2.15G. If the firm does so, it must first establish your financial resources and assess if you are of 'sufficient means', and that it is reasonable to assume that the savings have contributed to those means. To do this, you must give the firm adequate information to evaluate your current financial resources, including any savings/deposits accumulated. We consider it fair for firms to request such information, including in the form of a questionnaire, provided it is relevant and not onerous.
If the firm establishes 'sufficient means' and deducts an amount for savings, it must explain to you in writing how it arrived at such a deduction, the information used and how the sufficient means test was satisfied (DISP App 1.2.12G ). You have the right to object to firms deducting savings (DISP App 1.2.13G).

Such assessments do not aim to penalise the complainant, but to ensure that redress reflects the financial loss incurred. The guidance is not intended to allow firms to unfairly reduce redress, and they must show that in taking account of savings they have not placed the complainant in a detrimental position. The circumstances in which firms may not take 'savings' into account, or where they must limit applying 'savings', are illustrated in DISP App 1.2.8 to 1.2.10G.

The guidance and rules issued in the DISP appendix do not relieve the firm of the obligation to use an alternative basis for calculation where the facts and circumstances of the case warrant it (DISP App 1.1.8G). We recognise that the test for 'sufficient means' is likely to be different depending on the circumstances and facts of the case, and firms have to adopt a test that is appropriate for that individual (DISP App 1.2.9G ).

Why are policyholders receiving compensation now rather than at the end of the policy term? If they are retaining their policies are they able to benefit from any improvements in returns over time?

In most upheld cases the complainant was recommended an endowment which carried greater risks than they wanted to accept, or they were not made aware of the risks. So, in most cases, complainants do not tend to keep the policy as a repayment vehicle for a mortgage DISP App 1.3.2G and DISP App 1.2.15G state it is not unreasonable for firms to assume that a complainant will surrender their policy (without unreasonable cost) when calculating compensation, but also assert a complainant's right to retain the policy.

Anyone making the decision to keep an endowment policy after their complaint is upheld should be aware of the risks associated with the product. However, even if the policyholder should benefit from a future market upswing, this does not alter the history of the mis-sale, or the logic of any redress already paid.

Finally, our guidance (DISP App1.5.10G) offers scope for firms to offer an alternative form of redress, such as an agreement to guarantee, or 'underpin' the retained policy, rather than offer cash redress. This would allow the complainant to potentially benefit from an improvement in performance, while allowing them to keep the policy.

Complaints

I was sold an endowment mortgage by an independent financial adviser before April 1988. I have written to the firm and the Financial Ombudsman Service (FOS), but neither can investigate my complaint- why?

The advice and sales of certain financial products including mortgage endowments, did not become regulated until 29 April 1988.

The FOS may be able to adjudicate complaints about advice and sales before 29 April 1988 against firms who have agreed on a voluntary basis that they may do so. Most major firms (banks, building societies and life insurance companies) entered into such a voluntary agreement with the FOS.

However most independent financial advisers (IFAs) did not, so the FOS cannot consider a complaint against such a firm.

Firms who advised investors before 29 April 1988 have certain legal obligations to their clients. If the firm refuses to consider the complaint, or refutes any liability, then you may still be able to pursue a claim through the courts. You may wish to seek legal advice to see what options you may have.

If you were advised before 29 April 1988 but took out the policy after that date you may still be able to refer your complaint to the Ombudsman, even if the firm did not sign up to the voluntary agreements. Check with the Ombudsman if you are unsure.

Related links:
Complaints factsheet
The Financial Ombudsman Service
Financial Services Compensation Scheme (FSCS) 

I wish to make a complaint about investment advice I received in 1991, but the firm later stopped selling investments and did not become authorised by the FSA. Who should I complain to?

Firstly you should try to complain to the firm (or relevant contacts such as the adviser who sold you the product) in question.

If you are unhappy with the outcome, you may still be able to refer your complaint to the FOS. Secondary legislation under FSMA allows the FOS to consider certain complaints about events before 1 December 2001 (that is before the FOS became the single ombudsman scheme). Whether the complaint potentially falls within the FOS's jurisdiction will depend primarily on:

1. whether the firm was subject to a former scheme immediately before 1 December 2001. (broadly a former scheme is a complaints scheme of a former regulator which is covered by the secondary legislation); and
2. whether the complaint was covered by that scheme; and
3. whether you would have been entitled to bring the complaint to the former scheme.

Below is a list of former regulators and whether their complaints scheme is a former scheme. In some situations, a complaint that falls within a complaints scheme which is not a former scheme may also be subject to another complaints scheme that is a former scheme. This might occur, for example, when a regulator ceased or merged with another regulator. We have noted in the table some situations where this might occur, but the table is not intended to be exhaustive.

As you can see, the position is complicated. If you are unsure whether the FOS can consider a complaint, you should contact the FOS to check.

Former Regulator	Did the regulator have a complaints scheme which is a 'former scheme'?	Could the complaint fall under another 'former scheme'?
Personal Investment Authority	Yes - the PIA Ombudsman Bureau (PIAOB)	N/A
Financial Intermediaries, Managers and Brokers Regulatory Association (FIMBRA)	No	Certain complaints may have fallen within PIA's complaints scheme, PIAOB
Securities and Investments Board / Financial Services Authority (pre-1 December 2001) (FSA)	Yes - the FSA scheme	N/A
Investment Management Regulatory Organisation (IMRO)	Yes - the IMRO Ombudsman scheme	N/A
Insurance Brokers’ Registration Council (IBRC)	No	Certain complaints may have fallen within the FSA scheme
Securities and Futures Authority (SFA)	Yes – the SFA’s Complaints Bureau arrangements and Consumer Arbitration Scheme

If the complaint is outside the FOS's jurisdiction, they cannot consider it, but you may still attempt to seek redress through the courts. If you are considering doing so, you may wish to seek legal advice about what options might be available.

The FSCS may be able to consider a complaint where a firm is judged to be in default that is unable, or likely to be unable, to meet a claim against it. If the firm in question has not been, or cannot be, judged to be in default then the FSCS will not be able to consider the complaint. Contact the FSCS to see if the firm has been declared in default

Financial Ombudsman Service and the Financial Service Compensation Scheme

The firm that sold me the endowment policy has stopped trading – who should I contact?

You can contact the Financial Services Compensation Scheme (FSCS). The FSCS is a 'fund of last resort' for consumers who have a claim against a firm that we regulate, but is unable (or likely to be unable) to pay claims against it, often because it has stopped trading.
The FSCS is unlikely to be able to help you if the advice was given before 28 August 1988.

What are the FSA/FOS/FSCS relationships and remit concerning mortgage endowment complaints?

The FSA, FOS and the FSCS are separate organisations set up under the Financial Services and Markets Act 2000.

FSA: In terms of the FSA’s responsibilities and relationship with the Financial Ombudsman Service (FOS), firstly we are responsible for supervising how authorised firms handle mortgage endowment complaints. We do this using the rules in our Dispute Resolution Sourcebook (DISP) which the FOS and FSCS take into account when considering individual cases. Secondly, we and the FOS (and where appropriate the Financial Services Compensation Scheme (FSCS)) work closely on endowment-related issues. Thirdly, we are responsible for ensuring the FOS has adequate resources to carry out its work. We do this by setting the levy on firms in respect of FOS activities.

FOS: The FOS deals with individual complaints from consumers against firms that are regulated by the FSA (or by one of the previous regulators) and it can require firms to pay compensation. It also offers a wide range of publications for consumers and firms including technical briefings which cover mortgage endowments.

FSCS: The FSCS can pay compensation to consumers with claims against authorised firms that have been declared in default by FSCS – that is they are financially unable (or likely to be unable) to pay the claim themselves.
The recently published tripartite guide provides useful information.
Related information:
The Financial Ombudsman Service (FOS)
Financial Services Compensation Scheme (FSCS)
Tripartite guide

The FOS has told me my complaint falls outside its jurisdiction – can the FSA help?

The FOS covers complaints about financial products and services provided in (or from) the United Kingdom – from insurance and pension plans to bank accounts and investments. There are some complaints they do not normally deal with, for example the way an investment has performed.
As the FOS is operationally independent of the FSA, we cannot intervene in any FOS decision-making processes or the outcome of any decision made by an adjudicator or ombudsman.
Related information:
The Financial Ombudsman Service (FOS)

I am not happy with the FOS's decision - what can I do?

The FOS may take account of requirements in our Dispute Resolution Complaints Handbook (DISP) when considering individual cases, along with what was considered good industry practice at the time, and any other relevant facts. In light of this, we regularly meet the FOS to discuss common policy issues. However it is operationally independent of the FSA so we cannot, and do not, influence or intervene in FOS decisions on individual cases.

If you are unhappy with an adjudicator's decision on a case, you can refer it to the Ombudsman, whose decision is final. This does not stop you then seeking redress through the courts, but if you are considering this you may wish to take legal advice about what options may be available.
If you are unhappy with the way the FOS has handled your case – for instance, about what you consider to be unnecessary delays – you can ask the FOS's Service Review Team to review the case. If the FOS is then unable to resolve the case, you can refer it to the Independent Assessor, who considers complaints about the FOS's quality of service, but not the decisions it makes.
Related information:
The Financial Ombudsman Service (FOS)

How long will the Financial Ombudsman Service (FOS) take to consider and resolve my mortgage endowment complaint?

This may depend on whether you and the firm both agree, at an early stage, to any recommendation or informal settlement that FOS might suggest – or whether either you or the firm request the next, more formal stage of the FOS's process.

Disputes that involve a formal review and final decision by an ombudsman – the last stage of the process – take longer than cases settled by adjudicators making informal recommendations.
The FOS will keep you informed about progress on your case, so you know what is happening with your complaint.

At the FSA, we have taken several steps to ensure that firms consider complaints from consumers properly and promptly. This has included us monitoring firms' complaint-handling processes, and taking action where standards fail to meet our expectations. This should reduce the extent to which consumers then need to refer their complaint onto the FOS.
Related information:
The Financial Ombudsman Service (FOS)

FSA's actions

Is the FSA just focusing on certain sectors of the market which sold the product?

We monitor all firms that sold investment products, including life assurance companies, banks and building societies, and IFAs; responsibility for any mis-selling lies with the firm which gave the advice. We also review how firms treat their customers after selling the policy; this includes ensuring that firms provide sufficient post-sale information and they deal with any customer complaints fairly and promptly.

What action is the FSA taking to ensure that only those policyholders with genuine complaints about the level of advice initially given are encouraged to pursue matters accordingly?

We have always been careful to maintain a distinction between mis-selling issues and an investment simply producing lower returns than expected. We have made it clear in our consumer publications that having a shortfall does not in itself mean the firm mis-sold the investment.

Indeed, the series of consumer factsheets we have issued since 1999 have not focused solely on making a complaint. In our consumer communications, such as the 'Act Now' campaign (2003), we emphasised that consumers should address the issue, equip themselves with the facts, and seek appropriate advice if necessary. The 'Act Now' campaign encouraged investors to take pro-active steps to review a potential shortfall. Over 1 million of the 2.2 million households with an endowment-linked mortgage and a potential shortfall have now taken action to deal with the shortfall, such as restructuring their mortgage, endowment policy or savings.

We do not presume that all the consumers who complain have grounds to prove they have been mis-sold. However, it is important that consumers have the right to complain and seek redress where appropriate. Further, we believe the opportunity to use a dispute resolution mechanism that is free to consumers mutually benefits firms and consumers by improving confidence in financial services.

Related links:
July 2005 Progress report

Is the FSA looking at firms' investment strategies as well as mis-selling?

Whether a policy is suitable relates to the advice given and whether it was appropriate for that individual. It might have been suitable but not have performed as well as expected - poor investment performance is not in itself an indication of mis-selling.

Principles 2 and 9 of our Principles for Businesses set out that:

• A firm must conduct its business with due skill, care and diligence.
• A firm must take reasonable care to ensure the suitability of its advice and discretionary decisions for any customer who is entitled to rely upon its judgement.

Though investment strategies are mainly a matter for firms' commercial judgement, they are constrained by the capital and other prudential requirements we impose on firms. In the last few years we have strengthened the obligations and independence of actuaries within insurance firms to test and challenge management's investment strategies, and required insurance firms to set out the Principles and Practices of Financial Management (PPFM) which their investment and distribution strategies will follow.

We also require insurance companies to provide extra information to new clients so they can better understand how decisions will be taken on distributing profits and declaring bonuses. Since the beginning of 2006, we have required firms to give all policyholders a 'consumer friendly' version of their Principles and Practices of Financial Management (PPFM). The PPFM should cover the significant aspects of the firm's investment strategy. Its objective is to give consumers a better understanding of the way firms manage their with-profits business. This document particularly aims to improve the degree of understanding, and transparency of the 'smoothing' of with-profits policies.

We also have detailed point-of-sales rules which, among other things, require advisers to explain the potential risk of the investment they are recommending. We require firms to give Key Features documents to investors buying life policies, such as an endowment. This document explains in detail the aims of the policy, the sort of assets the company would invest in, and the potential risks associated with that investment, as well as other aspects such as costs and charges.

We are also responsible for ensuring that consumers receive adequate information on which to base financial decisions. A component of this is ensuring that firms pay due regard to the information needs of their customers and communicate with them in a way that is clear, fair and not misleading. This extends to ensuring that investors are aware of the risks of products, including how their money will be invested.

Related information:
Principles of Business

Why didn't the FSA conduct an industry-wide review?

We have the power – under the Financial Services and Markets Act 2000 (FSMA), which sets our powers and responsibilities – to undertake an industry-wide review in response to a perceived risk. However, we are required to act proportionally and appropriately when applying our regulatory tools, and to ensure that the projected costs of any action do not outweigh the benefits.

We decided not to undertake an industry-wide review of alleged endowment mis-selling, as we thought such a review would be needlessly expensive for firms and would deliver little additional benefit for consumers. The detailed reasoning for the decision can be found in chapter 4 of our progress report on mortgage endowments (October 2000).

In line with our proportionate, risk-based approach, we have adopted a targeted supervision policy. As we explained in our 2006 progress report, since July 2005 we have required 52 of the largest firms in the mortgage endowment market to provide us with greater levels of detail on a more regular basis on specialised mortgage endowment complaints data. From this we have required some firms to take remedial action to improve the quality of their complaint handling, including reviewing previously rejected complaints. We have also established that most firms have adequate contingency plans in place to handle surges in complaints volumes and required those that haven't to review and strengthen their existing arrangements.

Substantial progress has been made in terms of ensuring that firms handle complaints properly. We are conscious that endowments will remain a matter of real importance to consumers over the coming year as policies mature and individuals deal with shortfalls, and we stress that firms should not infer that we no longer see this subject as important. We will continue to monitor the market to ensure that firms are continuing to treat customers fairly. We will not hesitate to take action if firms and their senior management fail to do so. Enforcement action still remains an option for any firm that falls short of our requirements.

Related information:
Progress report December 2006 [PDF]
Progress report July 2005 [PDF]
October 2000 progress report

Projections between 1988 and 1994 including the 'LAUTRO charges' issue

Between 1988 and 1994, quotations were based on assumptions laid down by the regulator for both future rates of return and the charges/expenses to be used in the projections.

The premium charged was assessed by the company using its own assumptions, including those for future rates of return, charges and expenses.

Before April 1988, the practice of firms offering mortgage endowments and other 'with profits' policies was to assume a continuation of their previous bonus rates. This approach was reviewed and considered unsatisfactory, as it did not produce reasonable figures in times of changing economic conditions. Further, companies tended to use projections for competitive purposes.

From July 1988, projections became subject to regulation, and prescribed rates were outlined by LAUTRO. The regulator set standardised rates for growth projection, and standardised charges / expenses to be used in illustration of possible return. The main reason for this is that most with profit policies did not have fully disclosed charges but charged expenses against the with-profit funds. Projections had to state that these were possible returns using standardised charges. Actual charges would have been disclosed in the product particulars.

The expenses assumptions that LAUTRO stipulated were often lower than the firms' actual 'own charges' or expenses.. This had two effects:

• Where LAUTRO charges were lower than firms' actual charges, the performance required to actually achieve the sum assured / target value would need to be higher than that illustrated.
• Some firms used LAUTRO charges to set premiums. Given that actual deductions would have been far higher, this produced an artificially low premium, and required investments to significantly outperform the projections.

We identified the firms who had adopted the second effect and checked if a contractual warranty had been established. Where firms recognised such a warranty they took action on an individual basis to ensure they offered appropriate redress.

By 1995, a basis had been developed to assess the expenses of with profits policies and from that time, it was a requirement for firms to use 'own charges' in projections.

Projection rates

Some companies are quoting rates considerably lower (or higher) than 4%, 6% and 8%. Why is this?

Projections illustrating the likely performance of investment policies have been subject to rules set out by regulators since 1988. The purpose of projections is to inform consumers of possible returns from the policies, given certain growth assumptions, and taking into account eligible charges or expenses.

These are kept under review and were reduced to the current levels in 2000. However, these rates assume material investment in equity type assets. Where firms identify that their assets have a lower investment potential, they should use lower rates of return. We reminded firms of this in our Dear CEO letter of June 2003.

Scottish solicitors

I was sold an endowment mortgage by a firm of solicitors based in Scotland - who should I contact?

Complaints about the sale of mortgage endowment by a firm of solicitors in Scotland should be directed to the firm involved in the first instance. If the complaint is not resolved satisfactorily and advice was given between 1 August 1988 and 30 November 2001, you should refer your complaint to the Law Society of Scotland. Complaints about advice given before 1 August 1988 do not fall within the scope of the Law Society of Scotland, as the investment business rules allowing the Society to investigate a complaint against a member were not in force until then.

The extent of the powers the Law Society of Scotland could exercise over its members has varied over the period in question, so the date the solicitor gave the advice is significant in establishing what the Society can do about the complaint.

Since 1 December 2001, solicitors offering financial advice have been regulated by the FSA, and a complaint relating to a solicitor allegedly mis-selling an endowment from this date can be referred to the FOS if you are unhappy with the firm's decision.

You should refer to the FSA Consumer website for more details including information on solicitors in England, Wales and Northern Ireland.
Related information:
FSA consumer information

Time-barring

I have been told my complaint has been time-barred. What does this mean and what can I do?

You can only make a complaint about the sale of your endowment policy within certain time limits. If you complain after these time limits a firm can usually reject your complaint as being out of time – known as ‘time-barring’. It can also ask the Ombudsman to reject the complaint on similar grounds. For example, your complaint can be rejected if:

• you receive a letter warning of a high risk of a shortfall; then receive a subsequent letter giving you at least six months’ notice of a ‘final date’ by which you have to complain; and
• that ‘final date’ is at least three years after the date you received the first letter (and at least six years since you bought the policy); but
• you complain only after that ‘final date’.

Even if the firm rejects your complaint as being out of time, you can still refer your complaint to the Ombudsman if you think:

• there are exceptional circumstances; or
• the time bar was wrongly applied; or
• the time bar was unfair.

You should do this within six months of the firm sending you a ‘final response’ letter.
Related information:
Complaints factsheet
Timebarring review

I never got a warning of a 'final date' by which to complain, but have been time-barred by the firm anyway – is that right?

It can be, because our rules changed. So, if:

• you received a letter warning of a high risk of a shortfall before 1 June 2001; and
• you received a second or similar warning before 1 December 2003;

then the time limit for you to make a complaint ended at the latest of:

• six years from when you bought your policy; or
• three years from the date you received the first warning of a high risk of shortfall; or
• six months from the date you received the second or similar warning.

If you made your complaint after the latest of these dates, your complaint is likely to be time-barred, even if you got no warning of a 'final date'.

Why does the FSA allow consumers to refer complaints to the FOS, which would otherwise be time-barred by the 15 year 'Long Stop' provision in the Limitation Act (1980)?

The Limitation Act 1980 applies to claims made through the courts. However, we were required by the Financial Services and Markets Act 2000 (FSMA), to set time limits for the referral of complaints to the FOS. The time limits we specified in our rules were driven by policy concerns about the intended purpose and operation of the FOS, and the needs of consumers and firms within financial services markets, and did not include any 15 year long stop. We consulted on these rules during 2000/01.

We recently set out the position in a letter to the IFA Defence Union. The relevant extract is as follows:

"in some quarters, there is surprise that the Ombudsman is not subject to the 15 year long-stop limit that governs court claims in negligence. The Policy Statement [PS 158] ……covered this ground, noting that there was no requirement for the rules to follow the time limits for court claims (although, as a matter of policy, they generally do). The Statement also explained that, having regard to the long-term nature of retail financial services products (such as pensions and endowments), "we do not consider it is in the interests of consumers to rule out the possibility of complaints being dealt with outside the 15 year period that would apply to court cases. Nor do we consider this necessary to prevent hardship to firms".

The Endowment Timebomb

Legal & General (L&G) have warned that there will be a peak in with profits (a misnomer if ever there was one) mortgage endowment maturities in 2013, with most of them showing a shortfall.

Legal & General state that (based on its figures) 86% of policyholders are in the red, and that 46,000 L&G policies will mature next year.

Given that many people have not put aside enough money to meet these shortfalls, next year will pose the risk of a severe destabilisation of the housing market.

Aviva Policy Holders Expect Shortfall

Aviva looks set to let down around 71,000 of their endowment policy holders this year, as it has cut its bonuses thus "gifting" 70,000 policy holders whose General Accident and Norwich Union policies (both part of Aviva)  mature this year with a shortfall.

The £300BN With Profits Scandal

The Telegraph reports that there is over £330BN sitting in the now discredited with profits (a misnomer if ever there was one) investment funds.

Investors were duped into putting money into these funds on the false promise of high returns that would pay pensions, cover mortgages and provide a nest egg.

Money Management claim that these useless funds have grown by an average of 1.7% per annum over the last 10 years. Higher returns would have been achievable simply by putting the money into a savings account.

Those with money in these useless and underperforming funds are, in effect, trapped as the exit fees are extortionate.

Shortfalls For Royal London and Scottish Life

This Is Money reports that with-profits (a misleading description if ever there was one) mortgage endowments with Royal London Mutual and Scottish Life will face a shortfall when their policies mature.

Hapless holders of 25 year £50 per month with-profits policies from Royal London Mutual will face a fall on policies maturing this year of 3.3%, compared with the previous year.

Scottish Life, which is part of Royal London Mutual, offers a worse return (4% down).

95% of all mortgage endowment policyholders at Scottish Life will face a shortfall, 53% of those with Royal London.

Lousy results from a lousy product.

L&G Endowments Above Target?

Legal & General recently announced that mortgage endowment policies maturing this year will pay out more than was originally predicted when the policies were taken out 25 years ago.

Seemingly, if L&G's projections are correct, someone who paid £50 a month into one of the policies for 25 years will receive £34,750 (£372 above the target amount).

This optimistic announcement contrasts somewhat sharply with the September client mailing carried out by L&G, in which 81% of its mortgage endowment customers received red letters.

Don't crack open the champagne, until you receive your payout.

A Surplus!

A Surplus!

Ian Cowie, of the Telegraph, writes about his Legal and General endowment policy:

"..my 25-year with-profits endowment matured last month and paid out 33pc more than the target value.

Since you ask, the maturity forecast was £45,000 but the actual payout was a bit above £60,000..."

How nice for him!

My L&G policies both mature next year, and are forecast to make large losses.

How can there be such a difference between his L&G policy and mine, given that the maturity date is less than two years apart?

Class Actions

Class Actions

This week's Queen's Speech has raised the possibility of hapless endowment policy holders being able to mount class actions against the life assurance industry.

The government proposes to give consumers the right, for the first time, to take "class action" suits through the courts in cases of large-scale wrongdoing such as endowment mis-selling or personal pensions.

This is something that I have been calling for over many years. Not only has the financial services industry mis-sold these flawed and badly designed products, but they have mismanagement them (despite awarding themselves very generous "management" fees and commissions).

The consumer will not only has grounds for suing wrt mis-selling, but also has grounds based on the fact that the products are not fit for purpose (ie they did not pay off the mortgage, which is what they were meant to do).

Why buy the product if it wasn't going to work?

Unfortunately, there is little chance of this becoming law this side of the election.

Fit For Purpose?

Fit For Purpose?

Legal and General informed me today that the shortfall on my "with profits" endowment mortgage of £39K will range between £13K - £16K.

So much for the concept of "smoothing", allegedly one of the main components of a "with profits" policy.

Maybe they could also explain to me why they sold and "managed" a product that clearly was not fit for purpose?

Reality Dawns

Reality Dawns

As I have noted many times on this site, at some stage the hapless millions who were conned into buying useless, underperforming endowment mortgages will have to cover the shortfall when the policy matures.

The penny may finally be dropping, wrt paying off uncovered debt, as The Times reports that people are waking up to the problems of paying off interest only deals (an offshoot of endowments).

"Figures from the Financial Services Authority, which has regulated mortgages since 2004, show that 38 per cent of Britain's 11.1 million mortgage borrowers — or more than one in three — may have made inadequate provision to pay off their capital sum.

Many are in negative equity and the savings products taken out to cover the capital repayments have fallen short. That 38 per cent figure does not include those with endowments or buy-to-let investors who took out interest-only mortgages to keep the cost down."

These policies are beginning ot mature at the very time the property market/economy is struggling to pull itself out of the mire.

Things Will Only Get Worse

Things Will Only Get Worse

Those of you who hung onto a flimsy straw of hope that the recent rebound in the FTSE may help draw a line under your collapsing "with profits" (such a misnomer for such a lousy product) endowment policy, need to read this article in The Times.

The bottom line is that the returns will worsen, and that the life assurance companies will continue to cut bonuses.

Either way, in good times or bad, the policy holder picks up the bill for the failures of these useless products and the conmen who sold them to you.

We need a class action to bring these companies to heel!

99% Shortfall

99% Shortfall

This Is Money reports that a staggering 99% of endowment policies will fail to pay off the mortgages which they were designed to cover.

With over 4.3M policies still in force this means that millions of people will be affected by the failure of these useless products.

The FSA and the life assurance companies that "manage" these failed products continue to hide behind the excuse that, as they are investments, the consumer knowingly accepted the risk that they might not cover the mortgage.

This excuse is not valid, as the life assurance companies told the hapless consumer that they were designed to pay off their mortgages. Why else would anyone have bought these products if they were not going to fulfil their primary function of paying off a mortgage?

The fact 99% of them will fail to do this is proof that the product was poorly designed, and continues to be atrociously "managed" (eg why do life assurance companies continue to milk the policies of commissions, when they have demonstrably failed?).

The consumer has been ripped off by the life assurance industry, and left to rot by the FSA.

Suckered In

Suckered In

As per The Daily Mirror:

"More than 300,000 homeowners due to clear their mortgage debts this year are facing shameful shortfalls.

And some five million more people will suffer a similar fate in the next few years as a result of monstrous mis-selling of with-profits endowment policies....

Millions of people were suckered into taking out these disastrous policies in the 80s...."

Re being "suckered in", I couldn't agree more!

Scottish Widows Cut Bonuses

Scottish Widows Cut Bonuses

Scottish Widows have cut the bonus rates on their with-profits (such an ironic name for a product that does not actually produce a profit for the hapless policy holder) policies. Scottish Widows claim that the £14BN with-profits fund fell by 17.5% in 2008.

The majority of the 775,000 policies will therefore pay out less than they did last year.

The concept of "with-profits", as told to hapless investors by the life assurance companies, was that the life assurance comapnies would smooth the bonuses during the life of the policy. The fact that companies are having to cut bonuses indicates that this smoothing clearly has not taken place, and the bonus payments in earlier years were too high.

Why would the companies pay out bonuses that were too high in earlier years?

Simple, so that they could attract more investors by showing that their policies were high profit yielding products (some cynics might argue that these policies were a scam).

Norwich Union Renege on Deal

Norwich Union Renege on Deal

Aviva (aka Norwich Union) has announced that it is seeking to restructure its £1BN offer to policyholders for its inherited estate, which was agreed in July 2008.

It is a fair bet that any new offer will be lower, and that Norwich Union will seek ways to delay payment to their policyholders.

In a statement the company said:

"Since we agreed an offer with the policyholder advocate in July 2008, the estate has reduced significantly as a result of substantial reductions in the value of equity and property investments.

Continuing market volatility and uncertainty means that the original reattribution offer for the inherited estate no longer meets our critical test of being fair to both policyholders and shareholders. We are working closely with the policyholder advocate to see how we can restructure our offer.

While we realise this will be disappointing for our eligible policyholders, it does reflect the nature of the current exceptional investment market conditions. We expect to be able to update policyholders in the next few months."

Approximately 700,000 people were to have been offered between £400 and £1,000, and another 220,000 would have been offered a payout of between £1,000 and £3,500 if they accepted.

Who is there left in the UK who trusts in any shape, form or the slightest way the financial services industry in this country?