text:
PART 1 GENERAL
Citation, commencement and interpretation
1
1
This Order may be cited as the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2009.
2
This Order comes into force —
a
other than for the purposes of enabling applications to be made for a Part IV permission, or a variation of a Part IV permission, in relation to activities of the kind specified by articles 25E, 53D or 63J or, so far as relevant to any such activity, article 64 of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 on 1st July 2009; and
b
for the purposes of enabling applications to be made for a Part IV permission, or a variation of a Part IV permission, in relation to activities of the kind specified by articles 25E, 53D or 63J or, so far as relevant to any such activity, article 64 of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001, on 30th June 2010.
3
In this Order “ the Act ” means the Financial Services and Markets Act 2000 and “the Principal Order ” means the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001.
PART 2 AMENDMENTS OF THE REGULATED ACTIVITIES ORDER
Amendment of the Principal Order
2
The Principal Order is amended as follows.
Definitions
3
1
In article 3(1) (interpretation) —
a
after the definition of “the Act” insert —
“agreement provider” has the meaning given by article 63J(3);
“agreement seller” has the meaning given by article 63J(3);
;
b
after the definition of “regulated mortgage contract” insert —
“regulated sale and rent back agreement” has the meaning given by article 63J(3);
;
c
in paragraph (a) of the definition of “overseas person” —
i
after “25D” insert “25E,”;
ii
after “53C” insert “53D,”; and
iii
for “and 63F” insert “, 63F and 63J”.
2
In article 3(2) for “or 25C(1)” insert “, 25C(1) or 25E(1)”.
Arranging sale and rent back agreements
4
After article 25D (operating a multilateral trading facility) insert —
Arranging regulated sale and rent back agreements
25E
1
Making arrangements —
a
for another person to enter into a regulated sale and rent back agreement as an agreement seller or as an agreement provider; or
b
for another person (“A”) to vary the terms of a regulated sale and rent back agreement, entered into on or after 1st July 2009 by A as agreement seller or agreement provider, in such a way as to vary A’s obligations under that agreement,
is a specified kind of activity.
2
Making arrangements with a view to a person who participates in the arrangements entering into a regulated sale and rent back agreement as agreement seller or agreement provider is also a specified kind of activity.
.
Exclusion of arrangements not causing a deal
5
In article 26 (arrangements not causing a deal) for “and 25C(1)” substitute “, 25C(1) and 25 E(1)”.
Exclusion where a person provides a means of communication between parties
6
In article 27 (enabling parties to communicate) for “or 25C(2)” substitute “, 25C(2) or 25 E(2)”.
Exclusion where the arranger is a party to the contract, plan or agreement
7
1
In the title of article 28A (arranging contracts or plans to which the arranger is a party) for “or plans” substitute “, plans or agreements”.
2
In article 28A —
a
in paragraph (1) —
i
for “and 25C(1)” substitute “, 25C(1) and 25E(1)”;
ii
for “or plan” in both places substitute “, plan or agreement”;
b
in paragraph (2) —
i
for “and 25C(2)” substitute “, 25C(2) and 25E(2)”;
ii
for “or plans” substitute “, plans or agreements”.
Exclusion of arrangements where transaction is with or through authorised persons
8
In article 29(1) (arranging deals with or through authorised persons) —
a
for “and 25C(1) and (2)” substitute “, 25C(1) and (2) and 25E(1) and (2)”;
b
in sub-paragraph (b) for “investor, borrower, reversion seller, plan provider or (as the case may be) home purchaser” substitute “investor, borrower, reversion seller, plan provider, home purchaser, agreement provider or (as the case may be) agreement seller”.
Exclusion made in the course of administration by authorised person
9
In article 29A (arrangements made in the course of administration by authorised person) after paragraph (3) insert —
4
A person who is not an authorised person (“A”) does not carry on an activity of the kind specified by article 25E(1)(b) as a result of —
a
anything done by an authorised person (“B”) in relation to a regulated sale and rent back agreement which B is administering pursuant to an arrangement of the kind mentioned in article 63K(a); or
b
anything A does in connection with the administration of a regulated sale and rent back agreement in circumstances falling within article 63K(b).
.
Exclusion of arrangements which consist of introduction to an authorised person etc. for independent advice
10
In article 33 (introducing) —
a
for “and 25C(2)” substitute “, 25C(2) and 25E(2)”;
b
in paragraph (b)(iii) —
i
after “25C,” insert “25E,”;
ii
for “and 53C” substitute “, 53C and 53D”.
Exclusion of certain other arrangements consisting of an introduction to an authorised person etc.
11
In article 33A (introducing to authorised persons etc.) —
a
after paragraph (1B) insert —
1C
There are excluded from article 25E(2) arrangements where —
a
they are arrangements under which a client is introduced to a person (“N”) who is —
i
an authorised person who has permission to carry on a regulated activity of the kind specified by any of articles 25E, 53D and 63J(1),
ii
an appointed representative who may carry on a regulated activity of the kind specified by either of articles 25E or 53D without contravening the general prohibition, or
iii
an overseas person who carries on activities specified by any of articles 25E, 53D and 63J(1); and
b
the conditions mentioned in paragraph (2) are satisfied.
;
b
after paragraph 4(c) insert —
;
d
for the purposes of paragraph (1C), an agreement provider, an agreement seller or a person who is or may be contemplating entering into a regulated sale and rent back agreement as an agreement provider or agreement seller.
.
Other exclusions: arranging
12
In article 36(2) (other exclusions) for “and 25C” substitute “, 25C and 25E”.
Advising on regulated sale and rent back agreements
13
After article 53C (advising on regulated home purchase plans) insert —
Advising on regulated sale and rent back agreements
53D
Advising a person is a specified kind of activity if the advice —
a
is given to the person (“A”) in A’s capacity as —
i
an agreement seller or potential agreement seller, or
ii
an agreement provider or potential agreement provider; and
b
is advice on the merits of A doing either of the following —
i
entering into a particular regulated sale and rent back agreement; or
ii
varying the terms of a regulated sale and rent back agreement entered into on or after 1st July 2009 by A as agreement seller or agreement provider, in such a way so as to vary A’s obligations under that agreement.
.
Exclusion of advice given in newspapers etc.
14
In article 54 (advice given in newspapers etc.) —
a
in paragraph (1) for “and 53C” substitute “, 53C and 53D”;
b
in sub-paragraph (a) for “or 53C,” substitute “, 53C or 53D,”;
c
after sub-paragraph (b)(iv) insert —
;
v
to enter as agreement seller or agreement provider into regulated sale and rent back agreements, or vary the terms of regulated sale and rent back agreements entered into by them as agreement seller or agreement provider
;
d
in paragraph (2) for “and 53C” substitute “, 53C and 53D”.
Exclusion of advice given in the course of administration by authorised person
15
In article 54A (advice given in the course of administration by authorised person) after paragraph (3) insert —
4
A person who is not an authorised person (“A”) does not carry on an activity of the kind specified by article 53D by reason of
a
anything done by an authorised person (“B”) in relation to a regulated sale and rent back agreement which B is administering pursuant to arrangements of the kind mentioned in article 63K(a); or
b
anything A does in connection with the administration of a regulated sale and rent back agreement in circumstances falling within article 63K(b).
.
Other exclusions: advising
16
In article 55(2) (other exclusions) for “and 53C” substitute “, 53C and 53D”.
Entering into and administering regulated sale and rent back agreements
17
After article 63I (other exclusions) insert —
CHAPTER 15C
REGULATED SALE AND RENT BACK AGREEMENTS
The activities
Entering into and administering regulated sale and rent back agreements
63J
1
Entering into a regulated sale and rent back agreement as an agreement provider is a specified kind of activity.
2
Administering a regulated sale and rent back agreement is also a specified kind of activity when the agreement was entered into on or after 1st July 2009.
3
In this Chapter —
a
a “regulated sale and rent back agreement” is an arrangement comprised in one or more instruments or agreements, in relation to which the following conditions are met at the time it is entered into —
i
the arrangement is one under which a person (the “agreement provider”) buys all or part of the qualifying interest in land (other than timeshare accommodation) in the United Kingdom from an individual or trustees (the “agreement seller ”); and
ii
the agreement seller (if the agreement seller is an individual) or an individual who is the beneficiary of the trust (if the agreement seller is a trustee), or a related person, is entitled under the arrangement to occupy at least 40% of the land in question as or in connection with a dwelling, and intends to do so;
but such an arrangement is not a regulated sale and rent back agreement if it is a regulated home reversion plan;
b
“administering” a regulated sale and rent back agreement means any of —
i
notifying the agreement seller of changes in payments due under the agreement, or of other matters of which the agreement requires the agreement seller to be notified;
ii
taking any necessary steps for the purpose of making payments to the agreement seller under the agreement; and
iii
taking any necessary steps for the purposes of collecting or recovering payments due under the agreement from the agreement seller,
but a person is not to be treated as administering a regulated sale and rent back agreement because that person has, or exercises, a right to take action for the purposes of enforcing the agreement (or to require that such action is or is not taken).
4
For the purposes of paragraph (3) —
a
the reference to a “qualifying interest” in land —
i
in relation to land in England and Wales, is to an estate in fee simple absolute or a term of years absolute, whether subsisting at law or in equity;
ii
in relation to land in Scotland, is to the interest of an owner in land or the tenant’s right over or interest in a property subject to a lease;
iii
in relation to land in Northern Ireland, is to any freehold estate or any leasehold estate, whether subsisting at law or in equity;
b
“timeshare accommodation” has the meaning given by section 1 of the Timeshare Act 1992 ; and
c
“related person” in relation to the agreement seller or, where the agreement seller is a trustee, a beneficiary of the trust, means —
i
that person’s spouse or civil partner;
ii
a person (whether or not of the opposite sex) whose relationship with that person has the characteristic of the relationship between husband and wife;
iii
that person’s parent, brother, sister, child, grandparent or grandchild.
5
For the purposes of paragraph (3)(a)(ii), the area of any land which compromises a building or other structure containing two or more storeys is to be taken to be the aggregate of the floor areas of each of those storeys.
6
In this Order —
a
references to entering into a regulated sale and rent back agreement as agreement provider include acquiring any obligations or rights of the agreement provider, including the agreement provider’s interest in land or interests under one or more of the instruments or agreements referred to in paragraph (3)(a); but
b
in relation to a person who acquires any such obligations or rights, an activity is a specified kind of activity for the purposes of articles 25E(1)(b) and 53D(b)(ii) and paragraph (2) only if the agreement was entered into by the agreement provider (rather than the obligations or rights acquired) on or after 1st July 2009.
7
Accordingly, references in this Order to an agreement provider, other than in paragraph (6), include a person who acquires any such obligations or rights.
Exclusions
Arranging administration by authorised person
63K
A person who is not an authorised person does not carry on an activity of the kind specified by article 63J(2) in relation to a regulated sale and rent back agreement where that person —
a
arranges for another person, being an authorised person with permission to carry on an activity of that kind, to administer the agreement; or
b
administers the agreement during a period of not more than one month beginning with the day on which any such arrangement comes to an end.
Administration pursuant to agreement with authorised person
63L
A person who is not an authorised person does not carry on an activity of the kind specified by article 63J(2) in relation to a regulated sale and rent back agreement where that person administers the agreement pursuant to an agreement with an authorised person who has permission to carry on activity of that kind.
Other exclusions
63M
Article 63J is also subject to the exclusions in article 66 (trustees etc.), 72 (overseas persons) and 72A (information society services).
.
Exclusion of trustees, nominees and personal representatives
18
In article 66 (trustees, nominees and personal representatives) —
a
in paragraph (2) for “and 25C(1) and (2)” substitute “, 25C(1) and (2) and 25E (1) and (2)”;
b
in paragraph (6) for “and 53C” substitute “, 53C and 53D”;
c
after paragraph (6C) insert —
6D
Subject to paragraph (7), a person acting as a trustee or personal representative does not carry on an activity of the kind specified by article 63J(1) or (2) where the agreement seller under the regulated sale and rent back agreement is a beneficiary under the trust, will or intestacy.
;
d
in paragraph (7) for “and (6C)” substitute “, (6C) and (6D)”.
Exclusion of activities carried on in the course of a profession or non-investment business
19
In article 67(1) (activities carried on in the course of a profession or non-investment business) —
a
after “25C,” insert “25E,”; and
b
for “and 53C” substitute “, 53C and 53D”.
Overseas persons
20
In article 72 (overseas persons) —
a
in paragraph (5A) for “or 25C(1)(a)” substitute “, 25C(1)(a) or 25E(1)(a)”;
b
in paragraph (5B) for “and 25C(1)(b)” substitute “, 25C(1)(b) and 25E(1)(b)”;
c
in paragraph (5C) for “and 25C(2)” substitute “, 25C(2) and 25E(2)”;
d
in paragraph (5D) for “or 63F(1)” substitute “, 63F(1) or 63J(1)”;
e
in paragraph (5E) for “or 63F(2)” substitute “, 63F(2) or 63J(2)”;
f
in paragraph (5F) after sub-paragraph (b) (iii) insert —
iv
in relation to articles 25E and 63J, a regulated sale and rent back agreement where the agreement seller (or each agreement seller) is non-resident when the agreement seller enters into it;
g
in paragraph (5F) after sub-paragraph (c) (iii) insert —
iv
in the case of a regulated sale and rent back agreement, as agreement seller or agreement provider;
h
in paragraph (5F) after sub-paragraph (d) (iii) insert —
;
iv
in relation to article 25E, a regulated sale and rent back agreement
.
Specified investments
21
After article 88B (regulated home reversion plans) insert —
Regulated sale and rent back agreements
88C
Rights under a regulated sale and rent back agreement.
.
Rights to or interests in investments
22
In article 89(1) (rights to or interests in investments) for “88A or 88B” substitute “88A, 88B or 88C”.
PART 3 AMENDMENTS OF PRIMARY LEGISLATION
Amendments of the Companies Act 1985
23
In section 262(1) of the Companies Act 1985 (minor definitions) in the definition of “regulated activity” —
a
after paragraph (ab) insert —
ac
article 25E (arranging regulated sale and rent back agreements),
; and
b
after paragraph (cb) insert —
cc
article 53D (advising on regulated sale and rent back agreements),
.
Amendments of the Law of Property (Miscellaneous Provisions) Act 1989
24
In section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (contracts for sale etc. of land to be made by signed writing) —
a
in subsection (5)(c) for “, a regulated home reversion plan or a regulated home purchase plan” substitute “a regulated home reversion plan, a regulated home purchase plan or a regulated sale and rent back agreement”; and
b
in subsection (6) for “ and “regulated home purchase plan”” substitute “, “regulated home purchase plan” and “regulated sale and rent back agreement””.
Amendments of the Financial Services and Markets Act 2000
25
In section 49(2A)(b) of the Financial Services and Markets Act 2000 (persons connected with an applicant) —
a
in paragraph (b) of subsection (2A) for “or a regulated home purchase plan” substitute “, a regulated home purchase plan or a regulated sale and rent back agreement”; and
b
after subsection (3) insert —
4
In subsection (2A)(b) “regulated mortgage contract”, “regulated home reversion plan”, “regulated home purchase plan” and “regulated sale and rent back agreement” shall be construed in accordance with —
a
section 22;
b
any relevant order under that section; and
c
Schedule 2.
.
Amendments of the Companies Act 2006
26
In section 474(1) of the Companies Act 2006 (accounts and reports: minor definitions) in the definition of “regulated activity” —
a
after paragraph (c) insert —
ca
article 25E (arranging regulated sale and rent back agreements),
; and
b
after paragraph (g) insert —
ga
article 53D (advising on regulated sale and rent back agreements),
.
PART 4 AMENDMENTS OF OTHER SECONDARY LEGISLATION
Amendments of the Financial Services and Markets Act 2000 (Carrying on Regulated Activities by Way of Business) Order 2001
27
In the Financial Services and Markets Act 2000 (Carrying on Regulated Activities by Way of Business) Order 2001 after article 3C (arranging and advising on regulated home purchase plans) insert —
Arranging and advising on regulated sale and rent back agreements
3D
A person is not to be regarded as carrying on by way of business an activity specified by —
a
article 25E of the Regulated Activities Order (arranging regulated sale and rent back agreements);
b
article 53D of that Order (advising on regulated sale and rent back agreements); or
c
article 64 of that Order (agreeing), so far as relevant to either of the articles mentioned in sub-paragraphs (a) and (b),
unless that person carries on the business of engaging in that activity.
.
Amendments of the Financial Services and Markets Act 2000 (Exemption) Order 2001
28
In the Financial Services and Markets Act 2000 (Exemption) Order 2001 , Part 4 of the Schedule (persons exempt in respect of particular regulated activities) is amended as follows —
a
in paragraph 47 (local authorities) —
i
delete “or” at the end of sub-paragraph (c);
ii
after sub-paragraph (d) insert —
; or
article 25E, 53D or 63J of that Order (arranging, advising on, entering into or administering a regulated sale and rent back agreement)
;
b
in paragraph 48 (social housing) —
i
delete “or” at the end of sub-paragraph (c);
ii
after sub-paragraph (d) insert —
;
article 25E, 53D or 63J of that Order (arranging, advising on, entering into or administering a regulated sale and rent back agreement)
.
Amendments of the Financial Services and Markets Act 2000 (Professions) (Non-Exempt Activities) Order 2001
29
1
The Financial Services and Markets Act 2000 (Professions) (Non-Exempt Activities) Order 2001 is amended as follows.
2
In article 2(1) (interpretation) —
a
after the definition of “the Act” insert —
“agreement provider” has the meaning given by paragraph (3) of article 63J of the Regulated Activities Order, read with paragraphs (6) and (7) of that article;
“agreement seller” has the meaning given by article 63J(3) of the Regulated Activities Order
;
b
after the definition of “regulated mortgage contract” insert —
“regulated sale and rent back agreement” has the meaning given by article 63J(3) of the Regulated Activities Order;
.
3
After article 6F (activities to which exemption from the general prohibition does not apply: regulated home purchase plans) insert —
6G
1
An activity of the kind specified by article 53D of the Regulated Activities Order (advising on regulated sale and rent back agreements) where the advice in question falls within paragraph (2).
2
Subject to paragraph (3), advice falls within this paragraph in so far as —
a
it consists of a recommendation, given to an individual to enter as agreement seller or agreement provider into a regulated sale and rent back agreement with a particular person; and
b
in entering into a regulated sale and rent back agreement that person would be carrying on an activity of the kind specified by article 63J(1) of the Regulated Activities Order (regulated sale and rent back agreements).
3
Advice does not fall within paragraph (2) if it endorses a corresponding recommendation given to the individual by an authorised person with permission to carry on an activity of the kind specified by article 53D of the Regulated Activities Order or a person who is an exempt person in relation to an activity of that kind.
6H
1
An activity of the kind specified by article 63J(1) or (2) of the Regulated Activities Order (regulated sale and rent back agreements).
2
Paragraph (1) does not apply to an activity carried on by a person in his capacity as a trustee or personal representative where the agreement seller under the regulated sale and rent back agreement in question is a beneficiary under the trust, will or intestacy.
.
Amendments of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005
30
1
The Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 is amended as follows.
2
In article 28B(1)(a) (one off non-real time communications and solicited real time communications) for “10G or 10H” substitute “10G, 10H, 10I, 10J or 10K”.
3
In article 73(2) (advice centres) —
a
delete “or” at the end of sub-paragraph (d);
b
after sub-paragraph (e) insert —
; or
a regulated sale and rent back agreement
.
4
In Schedule 1 Part 1 (controlled activities) —
a
after paragraph 10H (advising on a regulated home purchase plan) insert —
Providing a regulated sale and rent back agreement
10I
Entering into a regulated sale and rent back agreement as agreement provider is a controlled activity.
Arranging a regulated sale and rent back agreement
10J
Making arrangements —
a
for another person to enter as agreement seller or agreement provider into a regulated sale and rent back agreement; or
b
for an agreement seller or an agreement provider under a regulated sale and rent back agreement, entered into on or after 1st July 2009, to vary the terms of that plan in such a way as to vary the obligations of the agreement seller or the agreement provider under that plan,
is a controlled activity.
Advising on a regulated sale and rent back agreement
10K
Advising a person (“A”) is a controlled activity if the advice is —
a
given to A in A’s capacity as agreement seller, potential agreement seller, agreement provider or potential agreement provider; and
b
advice on the merits of A doing either of the following —
i
entering into a regulated sale and rent back agreement, or
ii
varying the terms of a regulated sale and rent back agreement, entered into on or after 1st July 2009 by A, in such a way as to vary A’s obligations under that agreement.
.
5
In Schedule 1 Part 2 (controlled investments) —
a
after paragraph 26B (regulated home purchase plans) insert —
Regulated sale and rent back agreement
26C
Rights under a regulated sale and rent back agreement.
.
b
in paragraph 27(1) (rights to or interests in investments) for “26A or 26B” substitute “26A, 26B or 26C”;
c
in paragraph 28 (interpretation) —
i
before the definition of “buying” insert —
“agreement provider” has the meaning given in paragraph (3) of article 63J of the Regulated Activities Order, read with paragraphs (6) and (7) of that article;
“agreement seller” has the meaning given in article 63J(3) of the Regulated Activities Order
;
ii
after the definition of “regulated home reversion plan” and “reversion seller” insert —
“regulated sale and rent back agreement” has the meaning given in article 63J(3) of the Regulated Activities Order;
.
Amendments of the Limited Liability Partnerships (Accounts and Audit) (Application of Companies Act 2006) Regulations 2008
31
In section 474(1) of the Companies Act 2006, as applied to limited liability partnerships by regulation 32 of the Limited Liability Partnerships (Accounts and Audit) (Application of Companies Act 2006) Regulations 2008 (minor definition) in the definition of “regulated activity” —
a
after paragraph (c) insert —
ca
article 25E (arranging regulated sale and rent back agreements),
; and
b
after paragraph (g) insert —
ga
article 53D (advising on regulated sale and rent back agreements),
.
PART 5 TRANSITIONAL PROVISIONS
Interim permission and interim variation of permission
32
1
This article applies where —
a
a person (“A”) has submitted to the Authority a completed request to carry on activity of the kind specified by any of the following articles of the Principal Order (as amended by this Order) —
i
article 25E (arranging regulated sale and rent back agreements);
ii
article 53D (advising on regulated sale and rent back agreements);
iii
article 63J (entering into and administering regulated sale and rent back agreements); or
iv
article 64 (agreeing to carry on specified kinds of activity), so far as relevant to any of the above activities;
b
A —
i
has carried on such activity before 1st July 2009 and the Authority has received the request on or before 1st August 2009; or
ii
is an authorised person with a Part IV permission.
2
A is to be treated as having, on 1st July 2009, a Part IV permission to carry on the activity to which the request relates.
3
A permission which A is to be treated as having is referred to in this Order as an “interim permission”.
4
A variation of permission which A is to be treated as having is referred to in this Order as an “interim variation of permission”.
5
Section 51 (applications under this Part) of the Act shall apply to a request made under this article; and for that purpose —
a
a reference to an application for a Part IV permission, an application for the variation of a Part IV permission, an application under this Part and an application is taken to be a reference to a request under this article;
b
a reference to a Part IV permission is taken to be a reference to interim permission under this article;
c
a reference to the variation of a Part IV permission is taken to be a reference to interim variation of permission under this article; and
d
section 51 is to be read with any other necessary modifications.
6
A request made in accordance with this article must be determined by the Authority before the end of the period of three months beginning with the date on which it received the completed request.
7
The Authority may give interim permission or interim variation of permission for A to carry out the regulated activity or regulated activities to which the request relates or such of them as may be specified in the permission if it has ensured that A will satisfy, and continue to satisfy, the threshold conditions set out in Schedule 6 to the Act in relation to all such activities.
8
Should A be aggrieved by the determination of a request made under this article, A may apply to the Authority in writing for a review of the determination provided that the application for a review is made before the end of the period of 21 days beginning with the date on which the decision notice is given.
9
Should A’s request not be considered on the basis that it was received by the Authority after 1st August 2009, A may apply to the Authority in writing for a review of the refusal provided that the application for a review is made before the end of the period of 21 days beginning with the date on which the decision notice is given.
10
The decision on review shall be made by a person of appropriate seniority who was not involved in the original decision and shall be determined before the end of the period of 28 days beginning with the date on which the application for a review was received.
11
On an application for a review, any evidence relating to the subject matter of the review may be considered, whether or not it was available to the Authority at the material time.
12
The person determining the review may give interim permission or interim variation of permission for A to carry out the regulated activity or regulated activities to which the request relates or such of them as may be specified in the permission if that person has ensured that A will satisfy, and continue to satisfy, the threshold conditions set out in Schedule 6 to the Act in relation to all such activities.
13
On determining a request or an application for a review made in accordance with this article, the Authority must give A a decision notice setting out the reasons for the determination.
14
Without prejudice to the exercise by the Authority of its powers under Part IV of the Act, an interim permission or interim variation of permission lapses —
a
on the date that the Authority gives A a decision notice refusing a request for interim permission or interim variation of permission made in accordance with this article;
b
on the date that the Authority, in accordance with paragraph (17), consents to the withdrawal of the request;
c
when an application for Part IV permission or a variation of a Part IV permission to carry on such activity to which the interim permission or interim variation of permission relates has been finally decided; or
d
on 30th June 2010;
whichever is the earliest.
15
In this article, “refusing a request” means where the Authority has refused a request and —
a
A does not apply for a review, when the time for applying for a review has expired; or
b
A applies for a review, when the review has been determined in accordance with paragraphs (10) to (12).
16
In this article, “finally decided” means —
a
subject to paragraphs (17) and (18), when the application is withdrawn;
b
when the Authority grants permission under section 42 of the Act (giving permission) to carry on the activity in question;
c
when the Authority varies a permission under section 44 of the Act (variation etc. at request of authorised person) to add the activity in question;
d
where the Authority has refused an application and the matter is not referred to the Tribunal, when the time for referring the matter to the Tribunal has expired;
e
where the Authority has refused an application and the matter is referred to the Tribunal, when —
i
if the reference is determined by the Tribunal (including a determination following remission back to the Tribunal for rehearing in accordance with section 137(3)(a) of the Act (appeal on a point of law)), the time for bringing an appeal has expired; or
ii
on an appeal from a determination of the Tribunal on a point of law, the Court itself determines the application in accordance with section 137 of the Act.
17
Should A make a request for interim permission or interim variation of permission, the application may not be withdrawn without A first having obtained the consent of the Authority.
18
Should A hold an interim permission or interim variation of permission and make an application for Part IV permission or a variation of a Part IV permission in relation to an activity to which the interim permission or interim variation of permission relates, the application may not be withdrawn without A first having obtained the consent of the Authority.
19
Where —
a
the Authority exercises its powers under section 45 of the Act (variation etc. on the Authority’s own initiative) in relation to an authorised person who holds an interim permission; and
b
as a result of the variation there are no longer any regulated activities for which the authorised person has permission,
the Authority must, once it is satisfied that it is no longer necessary to keep the interim permission in force, cancel it.
Application of the Authority’s rules etc. to persons with an interim permission or interim variation of permission
33
1
The Authority may direct in writing that any relevant provision which would otherwise apply to a person by virtue of an interim permission or interim variation of permission is not to apply or is to apply as modified in the way specified in the direction.
2
Where the Authority makes a rule, gives guidance or issues a statement or code which applies only to persons with an interim permission or interim variation of permission (or only to a class of such persons), section 65 (statements and codes: procedure), 155 (consultation) and 157(3) (guidance) of the Act do not apply to that rule, guidance, statement or code.
3
For the purposes of paragraph (1), a “relevant provision” is any provision made as a result of the exercise by the Authority of any of its legislative functions mentioned in paragraph 1(2) of Schedule 1 to the Act (the Financial Services Authority).
Application of the Act etc.
34
The Schedule modifies the application of the Act and the Principal Order in relation to persons with an interim permission.
Tony Cunningham
Frank Roy
Two of the Lords Commissioners
of Her Majesty’s Treasury
1st June 2009


type: legislation

jurisdiction: UK

text:
PART 1 Introductory and Eligibility
Citation and commencement
1
These Regulations may be cited as the Saving Gateway Accounts Regulations 2009 and shall come into force on the appointed day.
Interpretation
2
1
In these Regulations —
a
the following expressions have the meanings given in the Saving Gateway Accounts Act 2009 (“ the Act ”) —
“approved account provider” (see section 4(1));
“the Commissioners” (see section 1(2));
a “death payment” (see section 4(2)(b));
“eligible person” (see section 3(1) as supplemented by regulations 3 and 4);
the “first month of the account’s operation” (see section 4(5)), and references to the sixth or any other month of the account’s operation, and cognate expressions, have corresponding meanings;
“maturity payment” (see section 4(2)(a));
“maturity period” (see section 4(2)(a));
“month” (see section 4(5)), except in the expression “the first month of the account’s operation;
“notice of eligibility” (see section 2);
the “qualifying balance” of a Saving Gateway account (see section 8(2));
“the relevant date” (see section 1(3));
“relevant person” (see section 17(2));
“Saving Gateway account” (see section 1(1));
“tax appeal” (see section 24(3));
except where the context otherwise requires —
“accepting deposits”, in regulation 14, has the meaning in section 22 of FISMA 2000 , taken with Schedule 2 of that Act and any order made under section 22;
“account”, except in regulations 8, 10(2)(k), 20(1) and (2) and 21, means a Saving Gateway account;
“appointed day” means the day appointed under section 31 of the Act for the purposes of section 8 of the Act;
“credit union” means a society registered as a credit union under the Industrial and Provident Societies Act 1965 , or the Credit Unions (Northern Ireland) Order 1985 ;
“ EEA State” means a State, other than the United Kingdom, which is a Contracting Party to the EEA agreement;
“electronic communications” includes any communications by an electronic communications network (within the meaning in the Communications Act 2003 );
“electronic signature” has the meaning given by section 7(2) of the Electronic Communications Act 2000 ;
“FISMA 2000” means the Financial Services and Markets Act 2000 ;
“full name” includes shortened details sufficient to identify the individual;
“ ITA 2007 ” means the Income Tax Act 2007 ;
“ ITTOIA 2005 ” means the Income Tax (Trading and Other Income) Act 2005 ;
“insolvency event” means the procedures listed in the definition of “insolvency event” in regulation 19(15) of the Payment Services Regulations 2009
“the Management Act ” means the Taxes Management Act 1970 ;
“notice” means notice in writing; and “notify” shall be construed accordingly;
“reference number”, except in regulation 5(1), means an eligible person’s reference number as stated on his or her notice of eligibility;
“tax year” means a period beginning with 6 th April in one year and ending with 5 th April in the next, and “the tax year 2009-10” means the tax year beginning with 6 th April 2009;
“ UK institution” means an institution which is incorporated in, or formed under the law of any part of, the United Kingdom.
2
The table below indexes other definitions in these Regulations:
Term defined Regulation
“account holder”
10(1)(a)
“agreed terms”
10(1)(h)
“the disqualifying circumstances”
16
“the eligibility window”
3(3)
“qualifying circumstances”
14(1)
Eligible persons – entitlement to working tax credit or child tax credit
3
1
A person is an eligible person by reason of entitlement (alone or with another person) to working tax credit or child tax credit, within the meaning in section 3(5) of the Act, only if he or she satisfies the following conditions.
2
Those conditions are —
Condition 1
There is a decision under sections 18 to 21 of the 2002 Act , other than on the basis of estimated income (a “final award”), that the person was entitled (alone or with another person) to working tax credit or child tax credit (not being at a nil rate) for the tax year 2009-10, or a subsequent tax year.
Condition 2
The relevant income for that tax year (“the relevant tax year”) did not exceed £16,040, or
the person’s entitlement to working tax credit or child tax credit for the relevant tax year arose by virtue of section 7(2) of the 2002 Act (automatic entitlement where the claimant or one of the claimants is entitled to a prescribed social security benefit).
Where a higher amount is determined for the purposes of section 7(1)(a) of the 2002 Act in relation to child tax credit (income threshold for child tax credit) in relation to the relevant tax year, that higher amount shall be substituted for the figure of £16,040 in paragraph (a).
Condition 3
The final award for the relevant tax year (and calculation of the relevant income on which it is based) has not been overturned.
Condition 4
If —
the Commissioners have given the person a final notice under section 17 of the 2002 Act, relating to the relevant tax year, and
the notice contained a requirement to make a declaration or statement under section 17(2)(a), (4)(a) or (6)(a) of the 2002 Act (annual declaration form),
the person has made the declarations or statements required by the time at which eligibility is being determined.
Condition 5
The eligibility window for that final award has not ended.
3
In this regulation —
the “eligibility window”, in relation to a final award, means the period —
beginning when that final award was made, and
ending 12 months after the date of that final award;
“estimated income” means estimated current year income, declared or stated as mentioned in section 17(8)(a) or (b) of the 2002 Act, unless the estimate has been treated as confirmed in the amount estimated, in accordance with section 17(8) of the 2002 Act;
“relevant income”, in relation to a person or persons and a tax year, means the relevant income determined in accordance with section 7 of the 2002 Act, and with regulations made under that section, in relation to a claim by the person or persons for working tax credit or child tax credit for the tax year;
“the 2002 Act” means the Tax Credits Act 2002 .
Eligible persons – connection with the U.K.
4
1
The connection with the United Kingdom mentioned in section 3(1)(b) of the Act is that the person is ordinarily resident in the United Kingdom.
2
A Crown servant posted overseas or his or her partner shall be treated as ordinarily resident in the United Kingdom.
3
A person shall be treated as ordinarily resident in the United Kingdom if he or she is exercising in the United Kingdom his or her rights as a worker pursuant to Council Regulation (EEC) No. 1612/68 .
4
A person who is in the United Kingdom as a result of his or her deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom shall be treated as being ordinarily resident in the United Kingdom.
5
In paragraph (2) —
“Crown servant posted overseas” has the meaning in regulation 5(2) of the Tax Credits (Residence) Regulations 2003 ;
the “partner” of a Crown servant posted overseas means a person falling within the description in regulation 6(1) (read with regulation 2(1)) of those Regulations.
Notices of eligibility
5
1
The notice of eligibility to be issued under section 2(1) of the Act shall contain (in addition to the expiry date) the following particulars —
a
the full name of the eligible person; and
b
his or her Saving Gateway reference number.
2
The notice shall be issued by being sent to the eligible person by post, except in a case where there is a person acting under regulation 13(8), in which case it may be sent to that person.
3
A further notice of eligibility may be issued to an eligible person at the discretion of the Commissioners, where the expiry date of a previous notice has passed, and the person has not opened a Saving Gateway account.
Opening of account by a person who has received a notice of eligibility
6
1
For the purposes of these Regulations, an account is opened with an approved account provider on the date when all the following conditions are satisfied (but no later than the expiry date specified in the notice of eligibility):
Condition 1
2
The applicant produces his or her notice of eligibility to the approved account provider or, where the approved account provider’s business systems provide for the opening of accounts without production of the relevant notice of eligibility, the applicant makes a true declaration to the approved account provider of the following information:
a
the expiry date of the notice, and
b
the applicant’s reference number (as stated on the notice).
Condition 2
The applicant enters into agreed terms with the approved account provider (see regulation 10(1)(h)) which include the application and declaration required by regulation 13.
Condition 3
Where that application is not in writing the applicant has agreed, or is treated as having agreed, the contents of the copy of the declaration required by regulation 13(2).
3
Where —
a
an account is opened in accordance with paragraph (1), and
b
there is a right to cancel (or automatic cancellation of) the agreed terms, and the period during which it may be exercised or occur has not expired,
the account shall not be treated as open for the purposes of regulation 22 (monthly return and financial claim) and regulation 5(3) until the period during which that right may be exercised or cancellation occur has expired without the right being exercised or cancellation occurring.
Maturity period (and payment of maturity payments or death payments)
7
1
Subject to paragraph (3), the maturity period for an account is the period —
a
beginning simultaneously with the first month of the account’s operation (see section 4(5) of the Act), and
b
ending with the last day of the twenty fourth month of the account’s operation.
2
The approved account provider must credit the account with the amount of the maturity payment, or otherwise pay the maturity payment to the account holder, within 21 days from the end of the maturity period for the account.
3
If the account holder of an account dies before the end of the account’s maturity period calculated under paragraph (1), paragraph (2) shall not apply and the account provider shall pay to the account holder’s personal representatives an amount ( a “death payment”) equal to the amount of the maturity payment to which the account holder would have become entitled if the maturity period for the account had ended immediately before the death.
4
A death payment shall be made within 21 days of the end of the month in which the account provider receives sufficient evidence of the death of the account holder and of the status of the personal representatives.
Account ceasing to be a Saving Gateway account (and rollover certificates)
8
1
An account ceases to be a Saving Gateway account —
a
on the death of the account holder;
b
for the purposes of section 8(4) of the Act, when the account provider has credited the account with the amount of the maturity payment, or otherwise paid the maturity payment to the account holder; or
c
for all other purposes, at the end of the maturity period for the account.
2
Where an account ceases to be a Saving Gateway account under paragraph (1)(c) for the purposes there mentioned (“on maturity”), if the account holder so requires by notice to the account provider, given within 6 months of that date, the account provider shall give to the account holder a certificate containing the information mentioned in paragraph (3) and the declaration mentioned in paragraph (4).
3
The information mentioned in this paragraph is —
a
the account holder’s full name;
b
his or her permanent address including postcode;
c
the name of the account provider with which the account was held on maturity;
d
the number allocated to it by that account provider;
e
the date on which it matured; and
f
the credit balance of the account (if any) on maturity, and the amount of the maturity payment made or to be made.
4
The declaration mentioned in this paragraph is a declaration by the account provider that the account was a Saving Gateway account throughout its maturity period and that the information given in the certificate is correct.
Government contribution rate
9
In the calculation of A x B to determine the maturity payment in relation to a Saving Gateway account in section 8(1) of the Act, the multiplier B is 50 pence.
PART 2 Other requirements to be satisfied in relation to accounts
General requirements for accounts
10
1
A Saving Gateway account must satisfy the requirements that —
a
it is the account of a single person (“the account holder”) who is “the applicant” in regulations 6(1) and 13;
b
the account holder is or has been an eligible person;
c
no person may open more than one Saving Gateway account in their lifetime;
d
it is a cash deposit account (including a share account held with a building society within the meaning of the Building Societies Act 1986 , and a deposit by way of subscription for shares in a credit union);
e
the account is denominated in sterling;
f
the account is covered by the Financial Services Compensation Scheme , or another deposit-guarantee scheme introduced and officially recognised in a Member State or EEA State, in accordance with Article 3(1) of Council Directive 94/19/ EEC ;
g
the account must be in the beneficial ownership of the account holder, and not be held on behalf of any other person; and
h
the account must at all times be managed in accordance with the Act and these Regulations by an approved account provider and under terms agreed and recorded in an agreement (the “agreed terms”) made between the account provider and the account holder.
2
Apart from other requirements of the Act and these Regulations, the agreed terms shall include (or comply with, as the case may be) the conditions that —
a
if the account is held by the account holder until the end of the account’s maturity period, the account provider shall pay the account holder a maturity payment (see section 8 of the Act);
b
if the account holder dies, while still holding the account, before the end of the account’s maturity period, the account provider shall pay a death payment in accordance with regulation 7(3) and (4);
c
there is no restriction on the maximum or minimum amount or on timing (subject to the account provider’s normal business hours) of withdrawals of the credit balance of the account;
d
there is no requirement that a minimum credit balance must be maintained in the account (with the result that an account with a nil balance is not automatically closed);
e
the account provider shall permit payment of sums into the account by cheque, direct debit, standing order, direct credit (other than standing order) or cash (unless, in the case of cash, the provider offers both internet and non-internet accounts, and the non-internet accounts accept cash);
f
no deductions or withdrawals from the account (by way of charges or otherwise) shall be made by the account provider;
g
the account provider shall have no right of charge, lien, set-off, mortgage or other security against the money in the account;
h
the account provider shall satisfy himself that any person to whom he delegates any of his functions or responsibilities under the agreed terms is competent to carry out those functions or responsibilities;
i
where there is a right to transfer the account under regulation 19(1), the whole of the account shall be transferred free of expense to the other approved account provider subject to and in accordance with regulation 19;
j
where the account is transferred to the account provider by a transfer under regulation 19, that no charges or expenses are due in respect of that transfer;
k
the account provider shall notify the account holder if by reason of any failure to satisfy the provisions of these Regulations an account is or will become no longer exempt from tax by virtue of regulation 3 of the Saving Gateway Accounts ( No. 2) Regulations 2009 .
3
In applying paragraph (1)(c), any account opened and cancelled as mentioned in regulation 6(2) shall be ignored.
Limit on sums paid into the account
11
1
The total of the sums paid into an account in a month (excluding any interest or other sums paid by the approved account provider under the agreed terms) shall not exceed £25.
2
In calculating the limit in paragraph (1) for the purpose of any payment into the account, previous withdrawals from the account shall be ignored.
Statements for an account
12
1
Except where a passbook is provided in accordance with paragraph (5), the account provider must issue a statement for the account —
a
at least six monthly, and
b
where an account is transferred to another account provider under regulation 19, as at the transfer date.
2
The statement date in the case of a six monthly statement must be the end of the sixth, twelfth, eighteenth or twenty fourth month of the account’s operation, as the case may be.
3
The statement shall be sent to the account holder within 30 days of the statement date.
4
Statements shall include the following information —
a
the full name of the account holder;
b
his or her address, including postcode;
c
the statement date;
d
the balance of the account at the previous statement date (if any), and otherwise at the opening of the account;
e
all payments into and withdrawals from the account during the statement period ending on the statement date;
f
a provisional calculation of the maturity payment (based on the qualifying balance achieved between the opening of the account and the statement date); and
g
the closing balance of the account at the statement date.
5
An account provider may comply with its obligations under this regulation (other than under paragraph (4)(f), if paragraph (6) applies) by issuing the account holder with a passbook for the account which, on presentation at a branch of the account provider, is up-dated to include the same information as a statement, omitting references in paragraph (4) to a statement date or statement period.
6
The information in paragraph (4)(f) may, at the option of the account provider, be provided in a notice to the account holder which is separate from the statement or passbook.
Conditions for application to open an account
13
1
An application by a person who has received a notice of eligibility (“the applicant”) to open an account with an approved account provider must be made to the approved account provider, and satisfy the conditions in paragraphs (2) to (4).
2
An application must incorporate a true declaration by the applicant that he or she —
a
has not previously opened a Saving Gateway account (excepting any account opened and closed as mentioned in regulation 6(2)); and
b
is ordinarily resident in the United Kingdom, or is so treated as ordinarily resident under regulation 4(2) to (5);
and where the application is not in writing, must authorise the approved account provider to record the terms of the declaration in a written declaration made on behalf of the applicant.
3
An application must contain —
a
the applicant’s full name and date of birth,
b
his or her address, including postcode,
c
the reference number, as stated on his or her notice of eligibility; and
d
an authorisation to the approved account provider to make on the account holder’s behalf any claims to relief from tax in respect of the account.
4
Where the application is not in writing, the approved account provider shall make the written declaration mentioned in paragraph (2), and notify the applicant of its contents, and such declaration shall take effect from the date on which the applicant agrees the contents (subject to any corrections), and if he or she neither agrees or disagrees with the contents within 14 days, he or she shall be treated as having agreed them.
5
An account provider shall decline to accept an application if he has reason to believe that —
a
the notice of eligibility has expired, or is not or might not be genuine,
b
the applicant’s declaration (see Condition 1 in regulation 6(1) if applicable, and paragraph (2) of this regulation) or application is or might be untrue, or contains matters which are or might be untrue, or
c
opening an account would be a breach of, or failure to comply with, any requirement in or a direction made under the Money Laundering Regulations 2007 .
6
An application made under this regulation shall be regarded as in writing if it is made —
a
by telephonic facsimile transmission containing the signature of the individual, or
b
by electronic communication containing an electronic signature of the individual.
7
Declarations made by the account provider under paragraph (4) shall be regarded as made in writing if they are produced by electronic means, and the copy of the declaration to be sent to the applicant in accordance with paragraph (4) may be sent by telephonic facsimile transmission or by electronic communication.
8
Where a person is or may be entitled to a benefit or tax credit specified in section 3(2) of the Act but is unable for the time being to act, the following persons may act for that person —
a
a deputy or receiver appointed by the Court of Protection with power to make a claim for a benefit or tax credit on behalf of that person;
b
in Scotland, a tutor, curator or guardian acting or appointed in terms of law who is administering the estate of that person;
c
in Northern Ireland, a controller appointed by the High Court, with power to make a claim for a benefit or tax credit on behalf of that person;
d
where there is no person mentioned in sub-paragraphs (a) to (c), a person appointed on behalf of the person under —
i
regulation 33(1) of the Social Security (Claims and Payments) Regulations 1987 ,
ii
regulation 33(1) of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 , or
iii
regulation 18(3) of the Tax Credits (Claims and Notifications) Regulations 2002 .
Account provider – qualifications and Commissioners’ approval
14
1
This regulation specifies the circumstances (“qualifying circumstances”) in which a person may be approved by the Commissioners as an account provider.
2
The qualifying circumstances are the following —
a
the person must make an application to the Commissioners for approval in a form specified by the Commissioners;
b
the person must undertake with the Commissioners (subject to regulation 13(5)) —
i
to accept properly completed applications from any person who has received a notice of eligibility and, where there is a right to transfer the account under regulation 19(1)(a), to accept transfers of an account in accordance with that regulation; or
ii
in the case of a credit union, to accept properly completed applications from any person who has received a notice of eligibility and, where there is a right to transfer the account under regulation 19(1)(a), to accept transfers of an account in accordance with that regulation, if the applicant or account holder is a member, or fulfils or is treated as fulfilling a qualification for admission to membership, of the credit union;
c
the person must demonstrate to the satisfaction of the Commissioners that the person can correctly operate the procedures in regulation 22, and receive electronic communications for the purposes of these Regulations from H.M. Revenue and Customs;
d
an approved account provider must be —
i
a UK institution which has permission under Part 4 of FISMA 2000 to carry on the regulated activity of accepting deposits;
ii
an EEA firm mentioned in paragraph 5(b) of Schedule 3 to FISMA 2000 (credit institution) which has permission under paragraph 15 of that Schedule to carry on the activity of accepting deposits, as a result of qualifying for authorisation under paragraph 12(1) or (2) of that Schedule (exercise of passport rights by EEA firms); or
iii
a credit institution (within the same meaning) incorporated outside the EEA which has permission under Part 4 of FISMA 2000 to carry on the regulated activity of accepting deposits through a branch in the United Kingdom;
e
an approved account provider must not be prevented from acting as such by any limitation or requirement imposed under section 42 or 43 of FISMA 2000, or by any prohibition or prohibition order in or made under that Act;
f
an account provider which is a credit institution within sub-paragraph (d)(ii) or (iii), and which does not intend to carry out all its functions as an account provider in the United Kingdom, must fulfil one of the requirements mentioned in regulation 15.
3
The terms of the Commissioners’ approval may include conditions designed to ensure that the provisions of these Regulations are satisfied.
Approved account provider – appointment of tax representative
15
1
This regulation specifies the requirements mentioned in regulation 14(2)(f).
2
The first requirement is that —
a
a person who falls within section 698(2) of ITTOIA 2005 is for the time being appointed by the account provider to be responsible for securing the discharge of the duties mentioned in paragraph (5) which fall to be discharged by the account provider, and
b
his or her identity and the fact of the appointment have been notified to the Commissioners by the account provider.
3
The second requirement is that there are for the time being other arrangements with the Commissioners for a person other than the account provider to secure the discharge of such duties.
4
The third requirement is that there are for the time being other arrangements with the Commissioners designed to secure the discharge of such duties.
5
The duties mentioned in this paragraph are those that fall to be discharged by an account provider under the Act and these Regulations.
6
The appointment of a person in pursuance of the first requirement shall be treated as terminated in circumstances where —
a
the Commissioners have reason to believe that the person concerned —
i
has failed to secure the discharge of any of the duties mentioned in paragraph (5), or
ii
does not have adequate resources to discharge those duties, and
b
the Commissioners have notified the account provider and that person that they propose to treat his or her appointment as having terminated from the date specified in the notice.
7
Where, in accordance with the first requirement, a person is at any time responsible for securing the discharge of duties, the person concerned —
a
shall be entitled to act on the account provider’s behalf for any of the purposes of the provisions relating to the duties;
b
shall secure (where appropriate by acting on the account provider’s behalf) the account provider’s compliance with and discharge of the duties; and
c
shall be personally liable in respect of any failure of the account provider to comply with or discharge any such duty as if the duties imposed on the account provider were imposed jointly and severally on the account provider and the person concerned.
Account provider – withdrawal by Commissioners of approval
16
1
This regulation specifies the circumstances (“the disqualifying circumstances”) in which the Commissioners may by notice withdraw their approval of a person as an account provider.
2
The disqualifying circumstances are that the Commissioners have reason to believe —
a
that any provision of the Act or these Regulations, or any term of an undertaking given in accordance with regulation 14(2)(b) or condition under regulation 14(3), is not or at any time has not been satisfied, either in respect of an account managed by the account provider or otherwise; or
b
that a person to whom they have given approval to act as an account provider is not qualified so to act.
3
The notice to which paragraph (1) refers shall specify —
a
the date from which the Commissioners’ approval is withdrawn; and
b
the disqualifying circumstances.
4
On receiving the notice referred to in paragraph (1), subject to any appeal under section 23(1)(b) of the Act, the account provider shall notify the account holder of the right to transfer the account under regulation 19(1)(a), and the notice shall inform the account holder of the rights under regulation 18(3).
Approved account provider ceasing to act
17
1
A person shall give notice to the Commissioners and to the account holder of an account which it manages of its intention to cease to act as the approved account provider not less than 30 days before it so ceases so that its obligations to the Commissioners under the account can be conveniently discharged at or about the time it ceases so to act.
2
The notice to the account holder shall inform him or her of the right to transfer the account under regulation 19(1)(a), and of the rights under regulation 18(3).
Account provider ceasing to qualify
18
1
A person shall cease to qualify as an approved account provider and shall notify the Commissioners within 30 days of the relevant event in sub-paragraphs (a) to (d), of that relevant event, where —
a
the person no longer fulfils the conditions of regulation 14;
b
there is an insolvency event in relation to the account provider;
c
an application has been made for a bank insolvency order or a bank administration order; or
d
in the case of a credit institution within regulation 14(2)(d)(ii) or (iii), action corresponding to that described in sub-paragraph (b) or (c) has been taken by or in relation to the institution under the law of an EEA State or other State.
2
On giving the notice referred to in paragraph (1), the person shall also notify the account holder of the right to transfer the account under regulation 19(1)(a), and the notice shall inform the account holder of the rights under paragraph (3).
3
Where an account holder —
a
receives a notice under paragraph (2), or regulation 16(4) or 17, and
b
gives instructions to the account provider in accordance with regulation 19(1)(a), with the consequence that the account is transferred pursuant to regulation 19 to another approved account provider (“the transferee”) within 30 days of the sending of the notice,
the period between the account provider ceasing to be approved, or act or qualify as an approved account provider, and the transfer to the transferee, shall be ignored in determining whether the account has at all times been managed by an approved account provider.
Transfer of accounts to other account providers
19
1
Where —
a
in a case falling within regulation 16, 17 or 18, the account holder, within 14 days of the sending to him or her of the notice under regulation 16(4), 17(2) or 18(2), instructs the account provider to transfer the account to another named approved account provider,
b
in a case where both account providers have agreed to the transfer of the account, the account holder instructs the account provider to transfer the account to another named approved account provider, or
c
arrangements are made by an account provider (subject to complying with regulation 16, 17 or 18, as the case may be) to transfer all its accounts to another approved account provider,
the transfer shall have effect and be treated as a transfer of the account.
2
Any transfer relating to an account shall be made directly between one account provider (“the transferor”) and another approved account provider (“the transferee”), and the account shall not be affected for the purposes of these Regulations by reason of the transfer
3
The account holder shall make a fresh application under regulation 13 (with any necessary modifications to reflect the fact that it is made on a transfer) to the transferee.
4
The transferor shall on the date of the transfer give the transferee a notice containing the information mentioned in paragraph (5) and the declaration mentioned in paragraph (6).
5
The information mentioned in this paragraph is —
a
the date of the transfer,
b
the account holder’s full name and reference number,
c
the date of the opening of the account, and the expected end of the maturity period under regulation 7(1)(b),
d
the qualifying balance of the account achieved up to the date of the transfer, and
e
the total of the sums paid into the account (calculated in accordance with regulation 11(1) and (2)) in the month in which the transfer is made.
6
The declaration mentioned in this paragraph is a declaration by the transferor that —
a
it has fulfilled all its obligations to the account holder, the Commissioners or otherwise, which are imposed by these Regulations;
b
it has transferred to the transferee or its nominee all the funds in the account;
c
it will forward any further payment received in respect of the account to the transferee, on receipt of the payment; and
d
the information contained in the notice is correct.
Recoupment of maturity payments and death payments etc.
20
1
Where —
a
the account holder was not an eligible person at the relevant date;
b
there is a breach of section 6(2)(a) or (b) of the Act in relation to an account;
c
there is a breach of Condition 1 in regulation 6(1) in relation to an account; or
d
there is a breach of regulation 10(1)(c) or 13(2) in relation to an account;
the account is void and the persons mentioned in paragraph (3) shall account to the Commissioners for any maturity payment or death payment wrongly made in respect of the account.
2
Where —
a
a person was entitled to a benefit under the terms of section 3(1)(a) of the Act, or was an eligible person by reason of entitlement to working tax credit or child tax credit under the terms of regulation 3, but such entitlement has been overturned, or it has subsequently been determined that payment of the relevant benefit or tax credit should not have been made, or should have been made at a different rate; or
b
an amount is paid by the Commissioners to an account provider in pursuance of the Act, due to a mis-statement in a monthly return or financial claim, or a mistake by an officer of Revenue and Customs;
the persons mentioned in paragraph (3) shall account to the Commissioners for any maturity payment, death payment or overpayment wrongly made in respect of the account.
3
The persons mentioned in paragraphs (1) and (2) are —
a
the account provider (to the extent that it has assets relating to the account, or directly or indirectly representing any of the payments, in its possession or control);
b
the account holder, or former account holder (to the extent that the payments have been made or credited to the account holder);
c
any person in whom the maturity payments, death payments or overpayments, or any property directly or indirectly representing any of them, is vested (whether beneficially or otherwise);
and they shall be jointly and severally liable.
4
Sections 49 (late notice of appeal) and 54 (settling of appeals by agreement) of the Management Act apply in relation to appeals under section 23 of the Act, other than tax appeals.
5
Where a person accountable under this regulation is notified by the Commissioners that an amount is due from him or her under it, that amount shall be treated for the purposes of Part 6 of the Management Act (collection and recovery) as if it were tax charged in an assessment and due and payable.
6
The time limits in sections 34 to 36 of the Management Act shall apply to amounts payable under this regulation as they apply to assessments.
“Repair” of invalid accounts
21
1
Except in the case of a breach of regulation 10(1)(b) or (c) or 13(2), or the case mentioned in regulation 20(2)(a), (where no repair of an account is possible), it is an overriding requirement to be satisfied in relation to an account that the account provider and account holder, as the case may be, take any steps necessary to remedy any breach of these Regulations.
2
Where a breach is remedied as mentioned in paragraph (1), the account shall, to the extent of that breach, be treated as having been a valid account at all times, except for the purposes of sections 19 to 21 of the Act (penalties).
PART 3 Requirements relating to administration of accounts
Monthly return and financial claim
22
1
In this regulation —
“initial return period”, in relation to an account provider, means the period —
beginning on the date on which the approval of the provider takes effect, or the appointed day (whichever is the later), and
ending simultaneously with the end of the then current month.
2
The following provisions of this regulation apply to an account provider in relation to —
a
that provider’s initial return period, and
b
each succeeding month,
during which, or any part of which, it acted as an account provider.
3
Within 14 days of the end of —
a
a provider’s initial return period, and
b
any succeeding period mentioned in paragraph (2),
the account provider shall deliver by means of electronic communications to the Commissioners, a return for that period, in a form specified by the Commissioners.
4
The return shall include a declaration of the information in paragraph (5), and a claim as mentioned in paragraph (6).
5
The information (to be given in relation to the return period) is —
a
for each account opened by the account provider in accordance with regulation 6, or transferred to the account provider in accordance with regulation 19 —
i
the account holder’s full name and date of birth,
ii
the account holder’s reference number, and
iii
the date of opening or transfer of the account;
b
for each account whose twelfth month of operation ends simultaneously with the end of the return period —
i
the account holder’s full name and date of birth,
ii
the account holder’s reference number,
iii
a provisional calculation of the maturity payment, based on the qualifying balance achieved between the account’s opening and the end of the return period, and
iv
the balance of the account at the end of the return period (disregarding any interest or sums mentioned in section 8(3)(a) or (b) of the Act);
c
for each account closed before the end of the account’s maturity period other than due to the death of the account holder, the account holder’s full name, date of birth and reference number, and the date of closure of the account;
d
for each account so closed due to the death of the account holder —
i
the account holder’s full name and date of birth,
ii
the account holder’s reference number,
iii
the date of death, and
iv
the amount of the death payment made or due to be made;
e
for each account whose maturity period ended at the end of the return period —
i
the account holder’s full name and date of birth,
ii
the account holder’s reference number,
iii
the amount of the maturity payment credited or due to be credited to the account, and
iv
the balance of the account at the end of the maturity period (disregarding any interest or sums mentioned in section 8(3)(a) or (b) of the Act);
or a statement, in each relevant case, that there were no items falling within the relevant category.
6
The claim (where there is an item falling with paragraph (5)(d) or (e)) is a claim for payment of an amount equal to the aggregate of those maturity payments and death payments, as the case may be.
7
Paragraph (5)(a) shall apply notwithstanding any transfer of the account to another provider under regulation 19, before the end of the return period in question.
8
The Commissioners (subject to checking and if necessary correcting the amount of the claim) shall pay the account provider —
a
where the return is made by the due date in paragraph (3), within 7 days of the due date, and
b
where the return is made later than the due date, within 7 days of receipt of the return.
9
Where the Commissioners require further information to verify a claim, the 7 days shall be calculated from the date on which the information is received.
Records to be kept by account provider
23
1
An account provider shall during the period mentioned in paragraph (2) keep sufficient records to enable it to show that the requirements of the Act and of these Regulations have been satisfied.
2
In particular, an account provider shall produce (when required to do so by an officer of Revenue and Customs) —
a
any application made under regulation 13 (where an account has been opened);
b
copies of account statements for an account, or notices given under regulation 12(6);
c
working papers supporting the calculation of each amount returned under regulation 22(5)(d)(iv) or (e)(iii); and
d
evidence of the date on which a maturity payment or death payment was made;
or electronic copies, within the period of 3 years from when the record was made, issued or given, or the account ceased to be a Saving Gateway account (whichever is later), notwithstanding any transfer of the account pursuant to regulation 19.
Information to be provided to the Commissioners
24
The Commissioners may by notice require any relevant person to furnish them, within such time (not being less than 14 days) as may be provided in the notice, such information about any account (including copies of or extracts from any books or other records) as they may reasonably require for the purposes of the Act or these Regulations.
Inspection of records by officer of Revenue and Customs
25
The Commissioners may by notice require any relevant person, within such time (not being less than 14 days) as may be provided in the notice, to make available for inspection at a place within the United Kingdom by an officer of Revenue and Customs authorised for that purpose all documents (including books and other records) in his possession or under his control relating to Saving Gateway accounts.
Tony Cunningham
Steve McCabe
Two of the Lords Commissioners of Her Majesty’s Treasury
11th November 2009


text:
1
These Regulations may be cited as the Value Added Tax (Amendment) (No. 4) Regulations 2009 and come into force on 1st December 2009.
2
The Value Added Tax Regulations 1995 are amended as follows.
3
In regulation 25 (making of returns) —
a
in paragraph (1) —
i
for “on the form numbered 4 in Schedule 1 to these Regulations (“Form 4”)” substitute “in the manner prescribed in regulation 25A”,
ii
for “signed by him” substitute “signed by that person or by a person authorised to sign on that person’s behalf”,
iii
for “true” substitute “correct”;
b
in paragraph (4) —
i
for “on the form numbered 5 in Schedule 1 to these Regulations (“Form 5”)” substitute “in the manner prescribed in regulation 25A”,
ii
for “signed by him” substitute “signed by that person or by a person authorised to sign on that person’s behalf”,
iii
for “true” substitute “correct”; and
c
omit paragraphs (4A) to (4M).
4
After regulation 25, insert —
25A
1
Where a person makes a return required by regulation 25 using electronic communications, such a method of making a return shall be referred to in this Part as an “electronic return system”.
2
Where a person makes a return on the form numbered 4 in Schedule 1 to these Regulations (“Form 4”) or, in the case of a final return, on the form numbered 5 in Schedule 1 to these Regulations (“Form 5”), such a method of making a return shall be referred to in this Part as a “paper return system”.
3
A specified person must make a specified return using an electronic return system.
4
In any case where an electronic return system is not used, a return must be made using a paper return system.
5
In this regulation a “specified person” means a person who —
a
is registered for VAT with an effective date of registration on or after 1st April 2010 whether or not such a person is registered in substitution for another person under regulation 6 (transfer of a going concern), or
b
is registered for VAT with an effective date of registration on or before 31st March 2010 and has as at 31st December 2009 or any date thereafter an annual VAT exclusive turnover of £100,000 or more whether or not that person’s turnover subsequently falls below this level,
provided that, in each case, that person has been notified as required by paragraph (7) below.
6
However a person —
a
who the Commissioners are satisfied is a practising member of a religious society or order whose beliefs are incompatible with the use of electronic communications, or
b
to whom an insolvency procedure as described in any of paragraphs (a) to (f) of section 81(4B) of the Act is applied at the time when he would otherwise be notified under paragraph (7) below
is not a specified person for the purposes of this regulation.
7
Where the Commissioners consider that a person is a specified person, they shall notify that person of that fact in writing.
8
Where an electronic return system is used, it must take a form approved by the Commissioners in a specific or general direction.
9
Where a paper return system is used, a return required by regulation 25(1) must be made on Form 4 and a return required by regulation 25(4) must be made on Form 5.
10
A direction under paragraph (8) above may in particular —
a
modify or dispense with any requirement of Form 4 or Form 5 (as appropriate),
b
specify circumstances in which the electronic return system may be used, or not used, by or on behalf of the person required to make the return.
For the purposes of sub-paragraph (b), the direction may specify different circumstances for different cases.
11
An electronic return system shall incorporate an electronic validation process.
12
Subject to paragraph (13) below and unless the contrary is proved —
a
the use of an electronic return system shall be proved to have resulted in the making of the return to the Controller only if this has been successfully recorded as such by the relevant electronic validation process,
b
the time of making the return to the Controller using an electronic return system shall be conclusively presumed to be the time recorded as such by the relevant electronic validation process, and
c
the person delivering the return to the Controller shall be presumed to be the person identified as such by any relevant feature of the electronic return system.
13
No return shall be treated as having been made using an electronic return system unless it is in the form required by paragraph (8) above.
The requirement in paragraph (8) above incorporates the matters mentioned in paragraph (10) above.
14
A return made using an electronic return system carries the same consequences as a return made using a paper return system, except in relation to any matter for which alternative or additional provision is made by or under this regulation.
15
In relation to returns made for prescribed accounting periods which end on or after 31 March 2011 , a specified person who fails to comply with paragraph (3) above is liable to a penalty.
16
But a specified person who has a reasonable excuse for so failing to comply is not liable to a penalty.
17
The table below sets out the penalties depending on the level of turnover.
Annual VAT exclusive turnover Penalty
£22,800,001 and above £400 £5,600,001 to £22,800,000 £300 £100,001 to £5,600,000 £200 £100,000 and under £100
18
A person may appeal against the Commissioners’ decision to impose a penalty only on the ground that —
a
that person is not a specified person,
b
the amount of the penalty is incorrect,
c
paragraph (3) above was complied with, or
d
paragraph (16) above applies.
19
In calculating a person’s annual VAT exclusive turnover for the purposes of paragraph (5)(b) above and the table in paragraph (17) above, the Commissioners shall use any available figures which they determine to be fair and reasonable in the circumstances and such figures shall be taken to be the correct figures for the purposes of the calculation.
20
Additional time is allowed to make —
a
a return using an electronic return system or a paper return system for which any related payment is made solely by means of electronic communications (see regulation 25(1) – time for making return, and regulations 40(2) to 40(4) – payment of VAT), or
b
a return using an electronic return system for which no payment is required to be made.
That additional time is only as the Commissioners may allow in a specific or general direction, and such a direction may allow different times for different means of payment.
The Commissioners need not give a direction pursuant to this paragraph.
21
Where a corporate body is registered in the names of its divisions pursuant to section 46(1) of the Act, each such separately registered division is “a person” for the purposes of paragraphs (5), (12) and (19) above.
22
In this regulation —
a
a “specified return” is a return required by regulation 25 submitted for any accounting period which commences on or after 1st April 2010,
b
a reference to an appeal is a reference to an appeal made under section 83(1)(zc) of the Act ,
c
“reasonable excuse” shall have the same limitation as it does in section 71(1)(b) of the Act.
23
In paragraphs (8) and (20) above “direction” and “direct” refer only to a current direction, and a direction is not current to the extent that it is varied, replaced or revoked by another Commissioners’ direction.
.
5
In regulation 40 (VAT to be accounted for on returns and payment of VAT) —
a
in paragraph (2A) —
i
after “a return is made” insert “or is required to be made”, and
ii
for “regulation 25” substitute “regulations 25 and 25A”;
b
after paragraph (2A), insert —
2B
With effect from 1st April 2010, where a person makes any payment to the Controller required by paragraph (2) above by cheque (whether or not in contravention of paragraph (2A) above) —
a
the payment shall be treated as made on the day when the cheque clears to the account of the Controller, and
b
that shall be the day when payment of any VAT shown as due on the return is to be treated as received by the Commissioners for the purposes of section 59 of the Act.
2C
For the purposes of this regulation, the day on which a cheque clears to the account of the Controller is the second business day following but not including the date of its receipt.
2D
In this regulation a “business day” is any day except —
a
Saturday, Sunday, Good Friday or Christmas Day;
b
a bank holiday under the Banking and Financial Dealings Act 1971 ;
c
a day appointed by Royal proclamation as a public fast or thanksgiving day ;
d
a day declared by an order under section 2(1) of the Banking and Financial Dealings Act 1971 to be a non-business day .
.
6
In Schedule 1 —
a
for Form 4 (VAT Return) substitute Form 1 in the Schedule to these Regulations;
b
for Form 5 (Final VAT Return) substitute Form 2 in the Schedule to these Regulations.
Steve Lamey
Bernadette Kenny
Two of the Commissioners for Her Majesty’s Revenue and Customs
9th November 2009


text:
Citation, commencement and interpretation
1
1
These Regulations may be cited as the Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) (Amendment) Regulations 2009 and shall come into force on 1st October 2009.
2
In these Regulations —
“the 2009 Regulations ” means the Human Fertilisation and Embryology (Statutory Storage Period for Embryos and Gametes) Regulations 2009 .
Amendment of the 2009 Regulations in relation to the maximum storage period
2
1
The 2009 Regulations are amended as set out in the following paragraphs.
2
In regulation 2 (interpretation) after the definition of “the Act” insert —
“the maximum storage period” means —
in respect of an embryo, the maximum period that may by virtue of these Regulations be specified under section 14(4) of the Act in a licence; and
in respect of a gamete, the maximum period that may by virtue of these Regulations be specified under section 14(3) of the Act in a licence;”.
3
In regulation 3 (extension of statutory storage period for embryos for premature infertility) —
a
in paragraph (2), for the words from “statutory” to “licences)” substitute “maximum storage period for an embryo”; and
b
in paragraph (4), for “statutory” (in both places) substitute “maximum”.
4
In regulation 4 (extension of statutory storage period for gametes for premature infertility) —
a
in paragraph (2), for the words from “statutory” to “licences)” substitute “maximum storage period for a gamete”; and
b
in paragraph (4), for “statutory” (in both places) substitute “maximum”.
5
In regulation 5 (transitional period for embryos: original storage period) —
a
for paragraph (1) substitute —
1
In this regulation and regulation 6 “original storage period”, in respect of an embryo means the period of five years beginning with the day on which the embryo was first placed in storage.
; and
b
in paragraphs (3) and (6), for “statutory”, wherever occurring, substitute “maximum”.
6
In regulations 6(2) and (5) (transitional provision for embryos: extended storage period), 7(2) and (5) (transitional provision for gametes: statutory storage period) and 8(2) and (5) (transitional provision for gametes: extended storage period), for “statutory”, wherever occurring, substitute “maximum”.
Application of the 2009 Regulations to embryos falling within the Human Fertilisation and Embryology (Supplementary Provision) Order 2009
3
After paragraph (4) of regulation 3 of the 2009 Regulations add —
5
Paragraphs (1) to (4) apply to embryos to which a maximum storage period of 10 years would otherwise apply by virtue of article 2 of the Human Fertilisation and Embryology (Supplementary Provision) Order 2009 as they apply to embryos first placed into storage after the coming into force of these Regulations.
.
Signed by authority of the Secretary of State for Health.
Gillian Merron
Minister of State,
Department of Health
24th September 2009


text:
Title, application and commencement
1
This Order —
a
may be cited as the Water (Prevention of Pollution) (Code of Good Agricultural Practice) (England) Order 2009;
b
applies in England; and
c
comes into force on 6th February 2009.
Approval of Code of Practice
2
The Secretary of State approves the Code of Good Agricultural Practice to protect water, soil and air quality which was issued by the Secretary of State on 6th January 2009 so far as it was issued for the purpose of —
a
giving practical guidance to persons engaged in agriculture with respect to activities that may affect controlled waters ; and
b
promoting what appears to the Secretary of State to be desirable practices by such persons for avoiding or minimising the pollution of any such waters.
Revocation
3
The Water (Prevention of Pollution) (Code of Practice) Order 1998 is revoked so far as it applies in England.
Jane Kennedy
Minister of State
Department for Environment, Food and Rural Affairs
12th January 2009


text:
This Order may be cited as the General Chiropractic Council (Registration) (Amendment) Rules Order of Council 2009 and shall come into force on 1st September 2009.
Judith Simpson
Clerk of the Privy Council


text:
Citation, commencement, interpretation and application
1
1
This Order may be cited as the Bolton Metropolitan Borough Council (School Meals) Order 2009 and comes into force on 1st January 2010.
2
In this Order —
“the 1996 Act ” means the Education Act 1996 ;
“the authority” means the Bolton Metropolitan Borough Council;
“the schools” means the Lever Edge Lane Primary School, the Red Lane Primary School, the St. Paul Church of England Primary School, the St. Bede Church of England Primary School, the Leverhulme Primary School and the Castle Hill Primary School.
3
This Order shall apply only in respect of the authority and the schools and shall cease to have effect on 31 st December 2012.
Exemptions
2
The authority shall be exempt from the requirement in s.512ZA(2) of the 1996 Act in relation to school meals.
3
The governing bodies of the schools shall be exempt from the requirement in s.533(4) of the 1996 Act in relation to school meals.
Vernon Coaker
Minister of State
Department for Children, Schools and Families
30th November 2007