DEPP 2.3 Decision notices and second supervisory notices

If a decision maker is asked to decide whether to give a decision notice or second supervisory notice, it will:

1. (1)

   review the material before it;

2. (2)

   consider any representations made (whether written, oral or both) and any comments by FCA staff or others in respect of those representations;

3. (3)

   decide whether to give the notice and the terms of any notice given.

Notwithstanding DEPP 2.3.1G(2), FCA staff under executive procedures who are asked to decide whether to give a decision notice or second supervisory notice will consider oral representations only in exceptional circumstances where they determine that prohibiting oral representations are likely to impact on the fairness of the decision. This may include (but is not limited to) circumstances where:

1. (1)

   the subject of the decision notice or second supervisory notice is not reasonably able to make written representations due to relevant personal circumstances; and/or

2. (2)

   oral representations are required due to the urgency or complexity of the matter to be decided.

If the FCA receives no response or representations within the period specified in a warning notice, the decision maker may regard as undisputed the allegations or matters in that notice and a decision notice will be given accordingly. A person who has received a decision notice and has not previously made any response or representations to the FCA, may nevertheless refer the FCA's decision to the Tribunal.

If the FCA receives no response or representations within the period specified in a first supervisory notice, the FCA will not give a second supervisory notice. The outcome depends on when the relevant action took or takes effect (as stated in the notice). If the action:

1. (1)

   took effect immediately, or on a specified date which has already passed, it continues to have effect (subject to any decision on a referral to the Tribunal); or

2. (2)

   was to take effect on a specified date which is still in the future, it takes effect on that date (subject to any decision on a referral to the Tribunal); or

3. (3)

   was to take effect when the matter was no longer open for review, it takes effect when the period to make representations (or the period for referral to the Tribunal, if longer) expires, unless the matter has been referred to the Tribunal.

In exceptional cases, the decision maker may permit representations from a person who has received a decision notice (or a second supervisory notice) or against whom action, detailed in a first supervisory notice, has taken effect, and shows on reasonable grounds that he did not receive the warning notice (or first supervisory notice), or that he had reasonable grounds for not responding within the specified period. In these circumstances, the decision maker may decide to give a further decision notice (or a written notice or a supervisory notice).

Under section 388(3) of the Act, following the giving of a decision notice but before the FCA takes action to which the decision notice relates, the FCA may give the person concerned a further decision notice relating to different action concerning the same matter. Under section 388(4) of the Act, the FCA can only do this if the person receiving the further decision notice gives its consent. In these circumstances the following procedure will apply:

1. (1)

   FCA staff will recommend to the decision maker that a further decision notice be given, either before or after obtaining the person's consent;

2. (2)

   the decision maker will consider whether the action proposed in the further decision notice is appropriate in the circumstances;

3. (3)

   if the decision maker decides that the action proposed is inappropriate, he will decide not to give the further decision notice. In this case, the original decision notice will stand and the person's rights in relation to that notice will be unaffected. If the person's consent has already been obtained, the FCA will notify the person of the decision not to give the further decision notice;

4. (4)

   if the decision maker decides that the action proposed is appropriate then, subject to the person's consent being (or having been) obtained, a further decision notice will be given;

5. (5)

   a person who had the right to refer the matter to the Tribunal under the original decision notice will have that right under the further decision notice. The time period in which the reference to the Tribunal may be made will begin from the date on which the further decision notice is given.

For the purpose of establishing whether the person receiving the further decision notice gives its consent, the FCA will normally require consent in writing.