The Regulatory Decisions Committee (RDC) takes certain decisions as part of the FCA. Find out more about the RDC and what to do if you receive a statutory notice from the RDC.
This information supplements the formal procedural provisions set out in the Decision Procedure and Penalties Manual (DEPP) module in the FCA Handbook of rules and guidance.
The RDC is an FCA Board Committee that is operationally separate from the rest of the FCA. The FCA Board appoints the RDC Chair and members, who are drawn from across a spectrum of business, consumer and industry backgrounds.
The RDC has a team of support staff and its own legal advisers, which ensures separation from those recommending the action. This helps to ensure that decisions to issue statutory notices are made fairly.
The RDC process is administrative, not judicial. It is not an appeal body; it is the final stage of decision-making for the FCA.
The role of the RDC
The RDC takes certain decisions on behalf of the FCA relating to enforcement and supervisory actions, and firm authorisation and individual approval applications.
In broad terms the RDC is the decision maker for:
Some warning notices, including those relating to:
- cancelling permissions and registrations
- financial penalties
- withdrawal of approvals
- public censures
Some decision notices, including those relating to the matters above and also relating to approval/authorisation cases where the warning notices are issued by the Regulatory Transactions Committee (RTC).
Own-initiative variations of permission and asset requirements, first supervisory notices and, where representations are made and not accepted, second supervisory notices.
The RDC Chair is an FCA employee. The other members of the Committee include practitioners and non-practitioners from a variety of backgrounds.
Generally, cases are considered by a panel of members, but if the decision is considered to be straightforward the RDC Chair or a Deputy can decide alone whether to issue a statutory notice.
Making fair decisions
The RDC is separate from the FCA Enforcement, Supervision and Authorisations teams that conduct investigations or consider applications for authorisation or approval. Once a warning notice and/or first supervisory notice has been issued, the RDC will not meet or discuss a case with these teams while it is still ongoing without you being present or being given an opportunity to respond.
In enforcement matters, it is normal practice at the representations meeting for the RDC panel to include new members who were not involved in the decision to issue the warning notice or supervisory notice.
In authorisations matters, as the decision to give the warning notice was made by the RTC, the RDC panel at the representations meeting will be new and will not have been involved in the decision to give the warning notice.
You will usually be given access to all of the material that the RDC or RTC consider before making the decision.
All of this helps to ensure that decisions are taken fairly.
The RDC will always consider representations. They may not change the committee’s decision, but in many cases the RDC has altered its decision as a result of representations.
Types of statutory notice
The FCA is required to give statutory notices under the Financial Services and Markets Act (FSMA) when it takes certain actions or makes certain decisions. The statutory notices given by the RDC are usually warning notices, decision notices or supervisory notices.
The RDC gives warning notices when it proposes to take action, for example disciplinary action against a regulated firm or individual.
The RDC gives decision notices either after it has considered representations on a warning notice and decided that action should be taken, or where no representations have been made and the RDC is entitled to assume that the facts and matters are undisputed.
The RDC usually gives supervisory notices when it is taking, or proposing to take, action on its own initiative against a firm to change the activities it is allowed to do or for asset requirements.
This information is not a substitute for reading the notice given to you, nor a substitute for the formal provisions in FSMA (including any relevant statutory instruments) or the FCA Handbook. When the RDC gives a notice it will tell you which provisions of FSMA are relevant.
Warning notices relating to enforcement action
The RDC gives warning notices based on recommendations from the FCA Enforcement team, which carries out investigations.
Based on the material presented to it, the RDC (either a panel of members, the Chair, or a deputy alone) considers whether the action recommended is the right action to take in all the circumstances. In most cases, you will receive a copy of the material considered by the RDC. Otherwise we will send you a list of the documents to which you are entitled to have access. There are some circumstances where you will not be entitled to see them, but these are rare.
After you receive a warning notice you have the right to respond through written and/or oral representations. The FCA Enforcement team will be given an opportunity to respond to your representations. The RDC will then consider all the representations and decide whether it is right to continue with the proposed action, either issuing a decision notice or deciding that no notice should be given.
If you do not make representations on a warning notice, the RDC is entitled to regard the facts and matters set out in it as undisputed and will issue a decision notice.
If you are given a decision notice, you can either accept the decision or refer the matter to the Upper Tribunal.
Warning notices refusing an application
When you apply to be authorised, the FCA Authorisations or Credit Authorisations divisions assess your application and may make a recommendation to the Regulatory Transactions Committee (RTC). The RTC, which is made up of senior FCA staff, will have decided to refuse your application based on the information provided and to give you a warning notice. With the warning notice, you will be provided with a copy of the material considered by the RTC when it decided to refuse your application.
If you receive a warning notice, you have the right to make representations to the RDC and tell it why the FCA should not refuse your application. This can be through written and/or oral representations. When we receive your representations, the FCA Authorisations team will be given an opportunity to respond to them. The RDC will consider all the representations and decide whether it is appropriate to continue with the refusal of your application, which would be by way of a decision notice.
If, after you have made representations, the RDC decides that no decision notice should be given, the case will be referred back to the FCA Authorisations team to make a decision.
If you do not make representations on a warning notice, the RTC is entitled to regard the notice as uncontested and will issue a decision notice.
If you are given a decision notice you can either accept the decision or refer the matter to the Upper Tribunal.
The FCA is required to issue supervisory notices when it decides to take certain types of actions under FSMA. A supervisory notice requires you to do something or not to do something – for example, it may give details of a decision to remove regulated activities from your firm’s permissions, or impose requirements on certain assets.
Unlike a warning notice or decision notice, the action set out in a supervisory notice can take effect immediately. If this is not the case, the RDC will make the date it takes effect clear in the notice.
You have the right to respond to a supervisory notice and have a minimum of 14 days to do so. You can also refer it to the Upper Tribunal straight away. You have 28 days after receiving the notice to refer it to the Upper Tribunal. The Upper Tribunal has the power to suspend the effect of a supervisory notice.
As the effect of a supervisory notice can be immediate, if appropriate, you can request to make urgent representations to the RDC before the deadlines.
Documents you’ll receive with your warning, decision and/or supervisory notice
It is important that the procedure used to take action against firms and individuals is fair and effective. FSMA imposes an obligation on us to give you access to material (in section 394 – which is described in your notice). However, this does not apply to every decision to give a notice.
To help you understand why you were given a notice, and to decide whether to make representations, you will usually be given a copy of the materials which were considered and relied on by the RTC or RDC when the decision was made.
The material will usually include:
- the notice and cover letter
- the recommendation papers from the relevant team at the FCA
- a draft warning and/or first supervisory notice and a formal list of documents
- the preliminary or final investigation report (if there was one) and any response you sent to the report itself
- other correspondence and key materials relied on to support the recommendation
- a note of any additional substantive communications
Getting help if you receive a warning or supervisory notice
You can ask the Decision-Making Committees Secretariat (DMC Secretariat) for help in understanding the rights referred to in the notice and for further information about the procedure. However, it can’t give you any advice about what you should do. You may wish to take legal or other professional advice (for example from a compliance consultant) about your situation.
The Financial Services Lawyers Association pro bono scheme may be able to provide you with free legal advice and help with responding to a warning notice and/or supervisory notice. This scheme is not run or endorsed by the FCA or the RDC.
Responding to a warning notice and/or supervisory notice
Your rights are described in general terms in the notice you receive. This information is in the section headed 'Procedural matters'.
If you are given a warning notice and/or a supervisory notice, you have the right to make representations to the RDC. This is your opportunity to explain your side of the matter. You may make representations in writing or in person (oral representations) or do both. The notice will give you a specific deadline for making written representations and for telling the RDC if you wish to make representations in person.
You can also refer supervisory notices to the Upper Tribunal, which could lead to parallel proceedings with the RDC and Tribunal, particularly in urgent cases.
Requesting more time
If you need more time to make written representations or to prepare to make oral representations you should contact the DMC Secretariat as soon as possible before the deadline expires. You will need to explain why you need more time and how much more you need.
The DMC Secretariat will ask our Enforcement or Authorisations teams to provide comments on your request.
The Chair will then decide whether to extend your deadline to make written representations. It is important that the Chair understands why an extension is needed and how long you need. You are not guaranteed an extension but it may be possible, depending on many factors, including how long you need and why.
In order to keep the process on track and avoid lengthy delays in resolving the matter, the Chair is unlikely to grant long extensions.
If you wish to make written representations you will have at least 14 days from the date the notice is given to do this. The deadline will be in your notice.
Your representations should be in response to the facts and matters set out in the notice and should set out your points clearly. You should send your written representations to the DMC Secretariat.
The written representations must reach the DMC Secretariat by the deadline to ensure that they are considered. It is important that you comply with this deadline. If the RDC has not received your representations it is entitled to assume that the facts in the notice are correct and issue a decision notice (in the case of a warning notice) or let the action stand (in the case of a supervisory notice) on the basis of those facts.
The FCA’s Enforcement and Authorisations teams will have an opportunity to provide the RDC with a response to your written representations and you will be sent a copy of this. The RDC will consider your representations and any response made by the Enforcement or Authorisations teams when making its decision.
This is a meeting between you (and/or your representatives), the FCA Enforcement and/or Authorisations team and the RDC. The RDC meets as a panel of the committee – usually the Chair (or a deputy) plus two or four other members. The meeting is your opportunity to explain your arguments against us taking (or continuing) the action. The focus of this meeting is very much on what you want to say.
You do not have to attend a representations meeting in person – you may send a representative.
Legal or other professional representation can help you to cover all of the points that you want to make, structure what you want to say and answer any questions.
Present at the oral representations meeting will be:
- you and/or your representative(s) (if you choose to be represented)
- the FCA’s Enforcement or Authorisations team
- the RDC panel
- the RDC's legal advisers
- a case handler from the DMC Secretariat
Sometimes there may be observers or additional support staff for the DMC Secretariat.
You will be told about the structure of the meeting and the composition of the panel before you attend. The panel Chair will also remind you of the structure and timeframes at the start of the meeting.
Normally, representations should not last longer than an hour. Occasionally the RDC is asked if more time can be given in which to speak. This can be given at the Chair’s discretion. All requests should be sent to the DMC Secretariat setting out why you need the extra time.
The RDC is not a court or a tribunal and there is no cross-examination. The RDC panel members may ask you questions. The FCA Enforcement/Authorisations team will have the opportunity to respond to the points that you make.
You cannot call witnesses or cross-examine FCA staff. However, you are able to bring someone with you who is able to support you if you think this will be beneficial.
If you are unable to answer a question you should say so. You can ask the panel Chair if you may respond in writing after the representations meeting. If the panel Chair permits this, you will be given a deadline to do so.
Sometimes you may wish to check some information in order to answer a question. You will be permitted to do this where the RDC feels that it is necessary and appropriate.
Failing to respond to warning notices and/or supervisory notices
If you do not respond to a warning notice, the RDC is entitled to assume that the facts and matters relied on and set out in that notice are correct, so it will nearly always give you a decision notice based on these. This does not affect your right to take the matter to the Upper Tribunal.
If you receive a first supervisory notice and you do not respond to the RDC, or refer it directly to the Upper Tribunal, this will be the end of the process. The action set out in the notice may already have taken effect and you may not have any right to argue against it. However, you may have an opportunity to apply to the FCA to reverse its effects if your situation changes.
Missing the representations deadline
In most circumstances you will not be able to make representations once the deadline has expired.
You will still have an opportunity to refer a decision notice to the Upper Tribunal even if you have not made representations to the RDC. You should do this within 28 days of being given the decision notice.
If you fail to respond to a supervisory notice or refer it to the Upper Tribunal, the terms of the notice will have taken effect. You can apply to us to reverse its effect if your situation changes.
After an RDC meeting
After the meeting, the RDC will consider your representations and decide what action to take.
If the RDC decides that it is right to continue with the action, it will issue a decision notice and/or second supervisory notice. This notice will set out the action the FCA has decided to take and will explain why the RDC has made that decision.
If the RDC decides not to issue a decision notice or second supervisory notice in the case of enforcement and supervisory action, it will tell you in writing.
If you were applying for authorisation or approval and the RDC decides not to issue a decision notice, this will normally result in your authorisation or approval being granted.
Receiving a decision notice or second supervisory notice
You can accept the decision set out in the decision notice and/or second supervisory notice, or you have the right to refer the matter to the Upper Tribunal. You normally have 28 days to make a referral to the Upper Tribunal. Details of how to do this will be included in the notice.
If you do not refer the decision notice to the Upper Tribunal within the 28-day deadline you will be given a final notice. A copy of the final notice will usually be placed on the FCA website.
If you do not refer a second supervisory notice to the Upper Tribunal, that will be the end of the matter and the action set out in the supervisory notice may already have taken effect and you will not have any right to argue against it. However, you can apply to the FCA to reverse its effects if your situation changes.
Disclosing your financial circumstances in the event of a fine
It is important for you to tell us if you are unable to pay a proposed financial penalty. We may have limited up-to-date information about your finances, and will rely on you to give us this information.
In some cases, you may have received a ‘Statement of means’ form to complete and provide evidence of your financial position.
Generally speaking you will not be entitled to any compensation or costs if we decide not to proceed with action against you.
However, if you believe that you may have a complaint, and want further information about making a complaint about the FCA, the FCA has a complaints scheme.
In certain circumstances, we must give a copy of the notice to someone other than the person it is issued to. This is when someone is identified in the notice and, in our opinion, it may be prejudicial to them. Such a person is known as a third party. The notice will normally state if there are any third parties.
Third parties have the opportunity to make representations to the RDC. They also have the opportunity to refer a decision notice to the Upper Tribunal.
Making a statutory notice public
In certain circumstances, details of a warning notice can be made public. If details of your warning notice are to be made public, you will be provided with a copy of the proposed warning notice statement and given the opportunity to object and/or provide comments on its publication.
Once a supervisory notice has taken effect, it is usually published on the FCA website.
The FCA may publish such information about the matter to which a decision notice or final notice relates as it considers appropriate. If you refer the decision notice to the Upper Tribunal, the facts and matters in the notice may be made public before your reference to the tribunal is concluded. You can object to early publication of the decision notice and you will be provided with details about how to do this when you are given the notice.