Consumer Affairs Archives - WA Communications

The Competition and Markets Authority: new powers and new roles?

The article below was written by Pauline Guénot, a member of WA’s Investor Services practice.

The Covid-19 pandemic has had a profound impact on every part of the UK economy, and this has generated an ever-more complex raft of challenges to which the Competition and Markets Authority has had to respond. The watchdog has had to address, at short notice, new issues facing consumers and businesses in response to restrictions and new ways of working. It reported this year that its increased casework volume had gained “refunds for thousands of holidaymakers, secured landmark changes for leaseholders and given increased protection to people arranging funerals for loved ones”. As businesses and regulators begin to focus on the post-pandemic environment, attention has turned to ensuring that the CMA remains fit for purpose in the longer term.

Digital regulation post-pandemic

As the UK’s competition regulator, the CMA already has a wide-ranging role. Its powers include investigating mergers that may reduce competition, studying entire markets or sectors where consumer problems have arisen, and sanctioning businesses and individuals which it finds taking part in cartels or other anti-competitive practices. Proposals currently being considered by the government may expand and enhance its remit further.

Among the most significant proposals focus on digitisation. The pandemic has increased the CMA’s emphasis on digital markets, with consumers spending more and more time online. Since the beginning of 2021, it has targeted all but one of the Big Five tech giants, opening different investigations into suspected breaches of competition law in digital markets: into Amazon and Google over the numbers of fake reviews on their sites; into Facebook over its collection and use of advertising and single sign-on data; and into Apple and Google for their privacy settings.

In April 2021, the government launched a new digital regulator within the CMA, the Digital Markets Unit. It is initially operating in “shadow form”, on a non-statutory footing, but the government has committed to introducing legislation when parliamentary time allows to formalise its authority. The DMU will be responsible for overseeing the UK’s digital regulatory regime; it will have a duty to promote competition and innovation, holding powers to regulate, investigate and ensure compliance from digital firms. The government has launched a consultation that will remain open until October 2021 to seek external input on its proposals for the new regime. These include proposals that would designate companies with “substantial market power” as having “strategic market status”. Such companies would be subject to an enforceable code of conduct, and to potentially greater interventions in their M&A activities. Investors in such companies will want to monitor these developments closely to understand the precise implications on their portfolios.

New powers for the CMA

Alongside a focus on digital markets, the growth in the number and value of private equity funded buyouts in the UK more generally has spurred debate as to the CMA’s overall ability to protect consumers and employees.

There has been speculation over possible CMA interventions in a number of markets with a significant private-equity presence. Concerns about private equity interest in UK supermarkets including Morrisons and Asda, for example, prompted the chairman of the Business, Energy and Industrial Strategy Committee, Darren Jones MP (Labour, Bristol North West) to write to the CMA’s Chief Executive, Dr Andrea Coscelli, questioning whether it had “insufficient oversight or powers to intervene when new owners act irresponsibly”, particularly in relation to private-equity owned businesses acquiring significant debt.

Dr Coscelli’s response stated that the CMA’s statutory functions covered merger control and market studies/investigations, and that its powers of intervention on the basis that an asset is highly leveraged is very limited. He did, however, add that a study can be launched if the status of providers appears to affect the price and quality of their services, or their financial resilience. While this reply did not itself outline his stance on possible reform, the CMA has already suggested that a stronger and more flexible competition and consumer protection regime would make its work more efficient.

In July 2021, the government announced that enhancing the CMA’s powers to tackle anti-competition business practices was under consideration and opened the consultation “Reforming competition and consumer policy”. The government’s proposals would enable the CMA to conclude investigations faster and impose stronger penalties for non-compliance. Breach of consumer law could entail a fine of up to 10% of the firm’s turnover; civil fines could be given to businesses that refuse to collaborate or that give misleading information to the regulators and penalties could be imposed for companies that do not comply with the CMA’s investigations equating to up to 5% of annual turnover, plus daily penalties of up to 5% of daily turnover while any non-compliance goes on. The length of court processes would also be reduced as the CMA could accept binding, voluntary commitments from businesses at any stage of its investigations, aiming at delivering quicker results and lower costs.

While these proposals signal stronger powers for the CMA, the government has also proposed removing mergers between small businesses with a turnover of less than £10 million from the CMA’s control. The government envisages that this change will allow the CMA to focus its efforts on larger players, and it aligns with its desire to remove some of the bureaucracy within which smaller businesses must operate more widely. Dr Coscelli has welcomed this balanced approach suggesting that the plans “take forward many of the CMA’s suggestions for a swifter, stronger and more flexible competition and consumer protection regime, which will protect consumers and enable businesses to grow and thrive.”

The government consultation is open until 1 October 2021, and, while legislation is unlikely before 2022, investors will want to pay close attention to the development of the government’s approach and prepare their portfolios for any changes in the regulatory landscape, as well as to identify those areas which the government is most enthusiastic to see grow.

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FinTech needs to find its legs

The UK’s FinTech sector is having its time in the sun.

Major players in the sector are growing into serious outfits. Revolut is now the most valuable private tech company of all time, Wise is setting course on its next decade of business, and a suite of smaller firms being eyed up by investors.

Added to this, political figures are keener than ever to discuss the sector’s role in Britain’s economic future. In the wake of Brexit, ministers have set out on a charm offensive to align themselves with FinTech success stories as part of government’s narrative of the UK at the heart of financial and technical innovation. Whether large or small, government has positioned itself as an ally of these businesses and Britain as the place to be to start, grow and succeed.

This trend is set to continue with announcements planned at attracting talent through ‘new tech visas’ and a new fund aimed at investing in tech start-ups by taking a stake in them. A new consultation will also aim to create a more level playing field for new businesses by curtailing the market dominance of the largest foreign tech companies like Google and Apple.

Despite this overall positive picture there are still considerable challenges for the sector.

Many FinTech businesses are disrupting existing markets and making meaningful improvements for consumers. Whilst a set of engaged customers will reap the benefits of this approach, many do not, due to a lack of awareness, or fears of new brands. Though government will not drive uptake, it has yet to engage coherently in the meaningful action it can take, such as greater transparency or setting new consumers standards. This means that businesses are left communicating with often disengaged consumers on technical issues that they have little experience of, where strategic government intervention would drive consumer benefit.

Government is now also giving greater attention to other (more traditional) financial services to deliver its agenda for ‘left behind’ consumers, such as protecting physical cash infrastructure for those who still use it, or relying on banks to deliver home ownership through the 5% deposit scheme. Whilst this could reflect the strong contacts of existing financial services within government, it also shows that many within departments default to engaging traditional financial services instead of looking to new and innovative approaches.

As scrutiny of online economic harms grow and other issues emerge, FinTech needs to be on the front foot if it is to make its current good standing connect with the priorities of the government and result in meaningful change.

FinTech businesses have a clear and compelling story to tell on their success, benefit for consumers, and role in the future of Britain. As they look to expand beyond their current customer base, and take the UK by storm, businesses will need to work with government more closely. Not as a photo opportunity, but a constructive partner to resolve the challenges of the day.

This can be achieved, but it will need clear messaging, strong alliances, and a proposition that government can get behind.

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Hell’s kitchen or a smorgasbord of delights? Is now the time to invest in hospitality, retail and leisure

For industries not normally put under high levels of regulation, the hospitality, retail and leisure sectors have felt the heavy hand of the government since Coronavirus restrictions were first introduced in the UK. This has sent the valuations for many businesses tumbling. However, this means now could be the time for private equity investment from those who have a handle on where restrictions, and government support, are heading and are prepared to weather the short-term storm.

What’s the outlook for reopening?

The government has set a target of getting the most vulnerable vaccinated by mid-February. Whilst some optimists think this could mean a return to normal by early March (when limited immunity from the first dose will start to take effect), a full reopening is unlikely then. The ultimate test for whether high street venues can reopen is whether cases, hospitalisations and deaths have come down, perhaps even close to zero. It will take some time for vaccinations to have this effect. Limited reopening might be expected in the spring, but a return to ‘normal’ shouldn’t be expected before the summer. Those premises which can survive will then likely reap the reward of pent up demand from a populace desperate for release.

What government support is available in the meantime?

The government has launched numerous schemes to aid this survival. The latest is a grant scheme for hospitality, retail, and leisure premises forced to close during the current national lockdown, worth up to £9,000 per property.

This follows loan schemes designed to provide cheap credit, including the Bounce-Back Loan Scheme, the Coronavirus Business Loan Scheme (CBILS) and the Coronavirus Large Business Loan Scheme (CLBILS). The loan schemes close to new applications on 31^st March.

Furlough has also helped businesses retain staff and so avoid training and recruitment costs once restrictions are eased. The current furlough scheme ends on 30^th April.

Alongside these wider measures, hospitality and leisure have benefitted from a 5% cut in VAT from 15^th July 2020. This has now been extended until 31^st March 2021. Hospitality, retail and leisure properties will also benefit from not having to pay business rates for the 2020/21 tax year.

With all these schemes soon coming to an end, what’s next?

The Treasury was hoping the need for business support would end in the spring, but this seems increasingly improbable as restrictions are unlikely to be lifted completely and we will see knock on effects of the crisis on spending through reduced income due to job losses.

Nevertheless, Sunak will hope to bring in less generous support, as he is increasingly showing a tendency to fiscal conservatism, as demonstrated by the fact that the November spending review saw a £10bn cut to non-Covid government expenditure. Thus, the March Budget will likely see a less generous replacement for the furlough scheme. This may be along the lines of the scrapped Winter Economy Plan, where workers were to be required to work at least part-time. There may also be an extension of loan schemes, depending on the severity of the restrictions still in place, as the government will want businesses to survive the home straight to reopening.

Large question marks remain over the likelihood of extensions to the VAT cut and the business rates relief. Sunak has spoken often about the need to repair the public finances. Any business rate relief extension for a short period would also be logistically complicated as it would require different rates to be applied for different parts of the 2021/22 tax year. Therefore, if the vaccination programme is on track, Sunak may make use of the Budget on 3^rd March 2021 to start a return to a more normal fiscal programme, reining in his generosity to businesses.

In all, March will likely see a winding down of support from an anxious Chancellor, but some support is likely to be extended to avoid businesses going bust just before the storm passes.

Longer-term: the business rates review

Alongside these short-term measures, the government is conducting a fundamental review of business rates, due to conclude in spring 2021. The review is set to consider, among other things, how premises are valued for the charging of business rates, the effectiveness of business rates and alternatives to it, and who gets relief from business rates. The review is a chance for the government to level the playing field between online and high-street retailers as well as boost the long-term recovery from coronavirus across high-street sectors. However, with the main beneficiaries of business rates, local governments, already strapped for cash, the Treasury will be wary of giving too much away.

Great uncertainty, but also great opportunity, lie ahead for investors in hospitality, retail and leisure. As we head into the spring, savvy investors must consider the challenges presented to the sectors by policy in a way they might not have done previously; something which WA has the experience to help with.

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Distressed hospitality: What investors need to be thinking about

With high street names such as Café Rouge and Byron Burgers entering administration, investors will be weighing up their options and trying to understand whether there are bargains to be had.

High street restaurant chains were competing in a crowded market before the onset of the Covid crisis, and lockdown has tipped a number of firms into the red as they’ve struggled to access government support schemes. Over the long-term, investors will need to consider the extent to which the public’s appetite for high street casual dining will remain, particularly given the prospect of social distancing measures continuing for many months to come.

More immediately, there are three areas where government decision-making will have a significant impact on hospitality assets, which will need to be factored into commercial decision making by investors.

Commercial rents

Commercial rents continue to be a problem for hospitality assets, with lease agreements no longer reflecting the value properties operating under social distancing conditions. Many businesses have taken advantage on the government’s moratorium on commercial evictions and have been able to defer paying their rent, but this will no longer be a possibility from 1 October 2020 when the moratorium ends. From this date, businesses will either have to renegotiate their tenancies with landlords or start paying again if they don’t want to face eviction or winding-up petitions.

Further government interventions on the issue of commercial rents are likely, and it is one of HM Treasury’s top priorities, with Treasury officials especially concerned about wider contagion to the financial sector should the issue of firms not being able to pay their rent not be resolved. Options for the government include a subsidy scheme proposed by the British Property Federation and the British Retail Consortium. The Furloughed Space Grant Scheme would involve government grants to cover fixed property costs, with the level of subsidy determined by the fall in turnover experienced by a business. Action from the government in this area could be a massive boost to potential investors, as commercial rents are a significant burden for hospitality assets. It will need careful balancing by the government, but any reforms could be enough to put high street restaurants back investors’ menus.

Short-term measures

With Rishi Sunak set to make an economic statement tomorrow, measures to support the hospitality sector are likely to feature heavily in his attempt to kick-start the economy.

The government is increasingly concerned with protecting jobs as the furlough scheme is wound down and will be keen to save as many of the 3.2 million jobs in the hospitality sector as possible. Short-term measures could include a reduced rate of VAT for the hospitality sector as a means of stimulating demand, as well as a possible further extension to the business rates holiday for hospitality firms that is set to run until the end of the financial year in 2021.

Interventions of this kind will certainly be welcomed by the sector, and any reduction in operating costs will help stabilise a number of businesses. However, the big question mark for government is whether they are enough to persuade consumers who are concerned about the virus to venture out of their homes and start spending again. It could be that measures such as a VAT cut only end up helping customers who would have spent anyway, making little difference to overall demand and causing the government to miss out on much-needed tax revenue.

Longer-term support

Beyond the Chancellor’s economic statement, the government will carefully monitor the economic performance of hospitality businesses, and further economic support could be forthcoming in the autumn Budget should it be required.

This additional help could be in the form of reduced employer’s National Insurance Contributions or through wage subsidies for younger workers to help in the battle against unemployment. The government has won plaudits for its commitment to the economy since the start of the crisis, and investors may want to gamble that the Chancellor’s cheque book stays open. Going on the government’s actions so far, this might be a sound bet, but investors will have to judge carefully whether purchasing a hospitality asset is only viable if the government continues to offer the industry financial support.

Investors looking to get a taste of the hospitality sector face an unenviable task. Not only will they have to make a long-term prediction about consumer attitudes towards high street casual dining (during a pandemic), but also consider the extent to which the government will continue supporting the sector.

However, investors who take the plunge could get their just deserts. The market will undergo a long overdue natural thinning over the rest of the year and beyond and firms that can embrace new revenue streams such as online ordering and delivery could stake out a sustainable position on the UK’s high streets.

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On the front foot: How the insurance sector can tackle reform and reputation

With all aspects of the insurance market currently facing the twin challenges of reform and reputation, the sector should take advantage of the delays to Financial Conduct Authority (FCA) action to get ahead of future market intervention and launch transformational change.

Pre-covid, change was on the horizon

The FCA launched an investigation into general insurance pricing, focusing on home and motor insurance in October 2018. The investigation was launched following campaigning against practices in the general insurance market, culminating in Citizens Advice making a super-complaint about loyalty pricing to the Competition and Markets Authority (CMA). Concerns about treatment of vulnerable customers, in addition to the transparency of insurance premiums and the ‘loyalty penalty’, where customers face higher charges for remaining with their provider over the long term, were cited by the CMA and FCA prior to the launch of the investigation. The final report was due to be published in Q1 2020 but has been delayed, along with the majority of its open investigations, to “beyond June 2020” due to coronavirus. With the FCA planning significant reforms, insurers should use the extra time to adapt their business models to minimise the impact of the measures when they are eventually introduced.

On 4 October 2019, the FCA published the interim report of its market study into the pricing of home and motor insurance. The report concluded that customers who do not switch insurers regularly pay more for cover, but that many firms have introduced significant barriers to switching, suppressing competition in the sector. Interventionist remedies are likely to be on the way, with the FCA currently considering a ban on auto-renewal of contracts, alongside a requirement to put all customers on the best value plan available to them. Another option currently under discussion is limiting or banning margin optimisation, or only allowing new business discounts where the discount is transparent and fully removed after one year.

Intervention in pricing practices could have significant consequences for the insurance industry. Auto-renew policies in particular, where insurers’ pricing practices mean premiums are raised year on year at the point of renewal, are likely to be targeted. The consequences for the industry are likely to be a decline in renewal rates and margins; a reduction in customer renewal tenures; a decline in new business discounting; and a disruption of the broker market.

For insurers that can pivot to a business model based on driving new business, rather than retaining existing clients through current structures, the transition will bring opportunities to increase market share at the expense of more slow-moving players. However, the impact of coronavirus has also brought fresh challenges to the sector that will have to be addressed.

Covid is likely to compound the need for reform in the insurance sector

The coronavirus pandemic has led to widespread criticism of the insurance sector across multiple specialisms. With the FCA already clear that the sector was not working well for consumers, issues around miscommunication of business interruption insurance and travel insurance coverage will only serve to drive home that perception. While there is no suggestion the insurance sector is running outside the boundaries of current regulatory standards, questions are arising over whether the sector should be more tightly regulated than first thought.

The FCA is currently taking a test case to the Supreme Court to provide legal clarity on business interruption insurance. The FCA previously wrote to insurers in April explaining that it believes most business interruption policies do not provide cover for losses related to the Covid-19 pandemic. Its decision to seek legal clarity is likely driven by the extensive public criticism of insurers during the pandemic, and the number of businesses currently taking their own legal action. While it is likely the FCA’s instincts on the legality of insurers behaviour will be proved right, this is unlikely to exempt the sector from significant reputational damage, particularly as businesses continue to struggle with the economic effects of the pandemic.

The insurance sector should be mindful of the reputational challenges it faces

With legal cases and negative news coverage piling up, insurers are going to need to do more than simply restate the terms of insurance policies if they wish to avoid longstanding reputational damage to the sector. The ongoing debate over the legalities of denying business interruption insurance payouts to businesses is ongoing, however, the growing perception of the sector is increasingly of one that is not focused on consumers.

Insurers are aware of the mounting challenges. Two-thirds of insurers surveyed in May 2020 by FWD Research believe that the industry has damaged its reputation through its coronavirus response. The question now is what the sector can do about it. Coronavirus has exposed a significant expectation gap between insurers and their customers, compounded by a traditionally hands-off approach to customer service and auto-renew policies that require minimal customer engagement.

Preparation is key to minimizing the impact of change

The FCA has made it clear that it is willing to enact transformational reforms on the insurance sector that will dramatically increase transparency and, for some insurers, fundamentally alter the way in which they do business. While the coronavirus pandemic may have delayed the publication of the FCA’s final rulings, insurers should not take this as an indication that the FCA has lost interest and instead begin preparing now for the likely changes that will be enacted.

The negative media coverage during the pandemic is likely to focus political and regulatory attention on the insurance industry once again. Insurers should prepare now for more scrutiny going forward and should consider developing a targeted communications plan to demonstrate that they have listened to the concerns raised over the past few months, and what they will do to help lead change in the industry going forward.

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Archive for the ‘Consumer Affairs’ Category

The Competition and Markets Authority: new powers and new roles?

Digital regulation post-pandemic

New powers for the CMA

FinTech needs to find its legs

The UK’s FinTech sector is having its time in the sun.

Hell’s kitchen or a smorgasbord of delights? Is now the time to invest in hospitality, retail and leisure

Distressed hospitality: What investors need to be thinking about

Commercial rents

Short-term measures

Longer-term support

On the front foot: How the insurance sector can tackle reform and reputation

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