BSOG 1
Introduction to the building societies regulatory guide
BSOG 1.1
Application, purpose and definitions
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Application
BSOG 1.1.1
See Notes
This Guide applies to building societies.
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Purpose
BSOG 1.1.2
See Notes
This Guide provides guidance on the Building Societies Act 1986 and on various constitutional and other provisions relating to building societies. It is not comprehensive and should not be treated as such.
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Frequently used terms
BSOG 1.1.3
See Notes
The following terms are used in this Guide and have the meaning described here:
| "the 1986 Act" | the Building Societies Act 1986[Note: as amended by or under the Building Societies Act 1997 and the Financial Services and Markets Act 2000. The 1986 Act has also been amended by other legislation.] |
| "the 1997 Act" | the Building Societies Act 1997 |
| "the Accounts Regulations" | the Building Societies (Accounts & Related Provisions) Regulations 1998 (SI 1998/504) |
| "the Act" | the Financial Services and Markets Act 2000 |
| "AGM" | Annual General Meeting |
| "amalgamation agreement" | a formal agreement between societies on the terms of their amalgamation |
| "approved person" | a person approved by the Authorityunder section 59 of the Act (Approval for particular arrangements) to perform a controlled function |
| "the Authority" | the Financial Services Authority |
| "the Banking Consolidation Directive" | the Council Directive of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions (No 2000/12/EC) |
| "the Banking Regulator" | the Authorityor other competent authority in another EEA state, as the case may be [Note: the functions of the Bank of England under the Banking Act 1987, which was repealed by the Act, were transferred to the Authorityby the Bank of England Act 1998. Similarly, the functions of the Commission, and of the Central Office of the Registry of Friendly Societies were transferred to the Authorityby and under the Act.] |
| "the BCD" | the Banking Consolidation Directive |
| "the board" | the board of directors of a building society |
| "borrower" or "borrowing member" | a person who is indebted to a society in respect of a loan fully, or where the Rules so provide, substantially secured on land |
| "the BSA" | the Building Societies Association |
| "the Combined Code" | the Combined Code on Corporate Governance, developed by the Corporate Governance Committee of the Financial Reporting Council |
| "the Commission" | the Building Societies Commission [Note: the functions of the Bank of England under the Banking Act 1987, which was repealed by the Act, were transferred to the Authority by the Bank of England Act 1998. Similarly, the functions of the Commission, and of the Central Office of the Registry of Friendly Societies were transferred to the Authority by and under the Act.] |
| "the Confirmation Criteria" | means in relation to mergers- the three criteria specified in section 95(4) of the 1986 Act which the Authorityhas to consider when deciding whether to confirm a merger of the business of one society with the business of another society; and means in relation to transfers- the four criteria specified in section 98(3) of the 1986 Act which the Authorityhas to consider when deciding whether to confirm a transfer of the business of a society to a commercial company |
| "controlled function" | a function, relating to the carrying on of a regulated activity by a firm, which is specified, under section 59 of the Act (Approval for particular arrangements), in the table of controlled functions shown in the Supervision manual of the Authoritys Handbook (see SUP 10.4.5 R) |
| "conversion" | the transfer of business of a society to a specially formed company |
| "credit institution" | an undertaking whose business is to receive deposits or other repayable funds from the public and to grant credits for its own account; or an electronic money institution within the meaning of article 1(3)(a) of the E-Money Directive (Directive 2000/46/EC) which has the right to benefit from the mutual recognition arrangements under the BCD |
| "the Electronic Communications Order" | the Building Societies Act 1986 (Electronic Communications) Order 2003 (SI 2003/404) |
| "existing company" | A company which is a company within the meaning of the Companies Act 2006and is a public company limited by shares, or is incorporated in an EEA State other than the United Kingdom and has power to offers its shares and debentures to the public, and which is carrying on business as a going concern on the date of the Transfer Agreement |
| "Fees Rules" | the Rules made by the Authority from time to time under paragraph 17 of Schedule 1 to the Financial Services and Markets Act 2000 prescribing the fees to be paid in connection with the discharge of its functions under the 1986 Act |
| "First, Second, Third Criterion" | See "Confirmation Criteria", and relating respectively, in relation to mergers, to the criteria specified in subsections (a), (b) and (c) of section 95(4) of the 1986 Act |
| "First, Second, Third, Fourth Criterion" | See "Confirmation Criteria", and relating respectively, in relation to transfers, to the criteria specified in subsections (a), (b), (c) and (d) of section 98(3) of the 1986 Act |
| "the IAS Regulation" | the Regulation of the European Parliament and of the Council of 19th July 2002 on the application of international accounting standards (1606/2002/EC) |
| "Instrument of Transfer" | The Instrument of Transfer of Engagements required by section 94(6) of the 1986 Act |
| "listed" | included in an official list |
| "member" | a shareholding or borrowing member of a society |
| "Memorandum" | the Memorandum of a building society required by paragraph 2 of Schedule 2 to the 1986 Act |
| "merger" | an amalgamation or transfer of engagements |
| "Merger Document" | the document or booklet containing the Schedule 16 Statement |
| "Merger Notification Statement" | a statement sent to members in the circumstances described in chapter 2 of this Guide |
| "Merger Resolutions" | the shareholding members' resolution and borrowing members' resolution required to approve a merger where no direction under section 42(B)(3) has been given |
| "official list" | (a) the list maintained by the Authorityin accordance with section 74(1) of the Financial Services and Markets Act 2000 (The official list) for the purposes of Part Vof the Act (Official Listing); (b) any corresponding list maintained by a competent authority for listing in another EEA State. |
| "OFT" | Office of Fair Trading |
| "PIBS" | Permanent interest-bearing shares, a type of deferred share |
| "proxy voting form" | an instrument appointing a proxy to attend a meeting of a society and vote on the member's behalf |
| "Qualifying Day" | the day specified in the Transfer Agreement as the qualifying day for the purposes of section 100 of the 1986 Act |
| "rationale" | the explanation of the reasons for a proposed merger provided to the members of a society by its board of directors |
| "the registration team" | the team at the Authority which carries out the registration functions under the 1986 Act |
| "the Rules" | the Rules of a building society |
| "Schedule 16 Statement" or "the Statement" | the statutory statement required by Schedule 16 to the 1986 Act to be sent to every member entitled to notice of a meeting of the society |
| "SGM" | Special General Meeting |
| "shareholder" or "shareholding member" | a person holding a share in a society (by investing in one or more share accounts or holding PIBS or other deferred shares) |
| "society" | a building society |
| "specially formed company" | a company formed by a society (and by no other than its nominees) for the purpose of assuming and conducting the society's business in its place, which is a company within the meaning of the Companies Act 2006 and is a public company limited by shares, or is incorporated in an EEA State other than the United Kingdom and has power to offer its shares or debentures to the public |
| "Statutory Cash Bonus" | the bonus required by section 100(2)(b) and (4) of the 1986 Act to be paid to every shareholder of the society who held shares on the Qualifying Day and was not eligible to vote on the requisite shareholding members' resolution |
| "successor" or "successor company" | A company, whether an existing company or a specially formed company, to which the business of a society is proposed to be transferred |
| "successor society" | a society accepting a transfer of engagements or the new society in the case of an amalgamation |
| "takeover" | the transfer of business of a society to an existing company |
| "the Three Criteria" | the criteria prescribed by section 95(4) of the 1986 Act which the Authorityhas to consider when deciding whether to confirm a merger [Note: the Three Criteria are varied in certain circumstances see section 6 of chapter 2 of this Guide.] |
| "transfer" | a conversion or takeover or both, as the context requires |
| "Transfer Agreement" | the agreement required by section 97(4)(b) of the 1986 Act between a society and its successor company on the terms of the transfer |
| "Transfer Document" | the document or booklet containing, inter alia, either the Transfer Statement or the Transfer Summary |
| "Transfer Regulations" | the Building Societies (Transfer of Business) Regulations 1998 (SI 1998/212) |
| "Transfer Resolutions" | the shareholding members' resolution and borrowing members' resolution required to approve a transfer where no direction under section 42B(4) of the 1986 Act has been given |
| "transferee society" | a society accepting a transfer of engagements from another society |
| "transferor society" | a society transferring its engagements to another society |
| "Transfer Statement" | the statement required by Schedule 17 to the 1986 Act to be sent in or with the notice of the meeting at which the Transfer Resolutions are to be considered or, if a Transfer Summary is sent, made available to every member entitled to notice of a meeting of the society |
| "Transfer Summary" | The summary of the Transfer Statement which may, in accordance with Schedule 17 to the 1986 Act, be sent, instead of the Transfer Statement, in or with the notice of the meeting at which the Transfer Resolutions are to be considered, to every member entitled to receive that notice |
| "Trustee Account Holder" | a person who is a shareholding or borrowing member of a society, by virtue of being the sole or representative joint holder of an account which he holds in trust for another person or persons any one or more of whom cannot reasonably practicably act in relation to that account themselves by reason of ill-health or old age or any physical or mental incapacity or disability, as provided by section 102D of the 1986 Act, whether or not the account holder is a shareholding or borrowing member in respect of any other accounts |
| "vesting date" | the date on which all the property, rights and liabilities of the society making the transfer, except any shares in the successor company, are transferred to the successor company |
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BSOG 1.2
Principal purpose of a building society and funding and lending limits
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BSOG 1.2.1
See Notes
A building society can only be or remain established under the 1986 Act if its purpose, or principal purpose, is making loans which are secured on residential property and funded substantially by the society's members (the principal purpose test) (section 5 of the 1986 Act).
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BSOG 1.2.2
See Notes
If an established building society no longer meets the principal purpose test, the Authoritymay:
(1) direct it to submit a restructuring plan designed to ensure that the society will meet the principal purpose test by a certain date and that it will continue to meet that test in the future (section 36 of the 1986 Act);
(2) direct it to submit to its members for their approval at a meeting the requisite resolutions for a transfer of the societys business to a company (section 36 of the 1986 Act); or
(3) petition the High Court for the societys winding-up (section 37 of the 1986 Act).
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BSOG 1.2.3
See Notes
Building societies are subject to lending and funding limits, which help to determine their compliance with the principal purpose test (sections 6 and 7 of the 1986 Act).
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BSOG 1.2.4
See Notes
When the Authorityassesses a building society's compliance with the principal purpose test, it takes into account:
(1) whether the society is meeting, and is expected to continue to meet, its lending and funding limits (sections 6 and 7 of the 1986 Act);
(2) the actual and projected proportion of the societys gross income that is, or is expected to be, derived from activities that are related to the making of loans secured on residential property. (Income from the societys property related insurance and valuation services might be regarded as related to the making of loans secured on residential property, but income from the society's motor insurance business (if any) would not); and
(3) all other relevant quantitative and qualitative factors.
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BSOG 1.2.5
See Notes
The Authorityexpects societies to draw up their corporate and other business plans so as to provide reasonable assurance that they will comply with the principal purpose test and their other obligations under the 1986 Act.
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BSOG 1.2.6
See Notes
In particular, societies should ensure that any programme of securitisation does not threaten compliance either with the principal purpose, or with the lending or funding nature limits. Sections 6(3) and 7(3) of the 1986 Act respectively make clear that only items included in total assets or total liabilities in a societys accounts count towards the nature limits. The adoption of International Accounting Standards by some societies changed the accounting treatment of securitised assets for those societies from 1 January 2005. The Building Societies Act 1986 (Modification of the Lending Limit and Funding Limit Calculations) Order 2004 (S.I. 2004/3200) amended the 1986 Act so that securitised assets and related liabilities may continue to be excluded from nature limit calculations, regardless of how they are included in the accounts of a society. Therefore societies which use International Accounting Standards to prepare their accounts will not be disadvantaged in relation to the nature limits.
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BSOG 1.3
Constitutional matters
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Constitutional form
BSOG 1.3.1
See Notes
Building societies have a particular constitutional form: they are mutuals run for the benefit of their members (i.e. their borrowers and savers). A society cannot therefore be owned or controlled by an outside institution or major shareholder. Society boards and management have a special responsibility to protect the interests of their members through the highest standards of corporate governance.
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BSOG 1.3.2
See Notes
Although societies are not publicly quoted, they should have regard to the Combined Code when they establish and review their corporate governance arrangements.
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Fit and proper test for directors
BSOG 1.3.3
See Notes
A building society's directors are elected by its members. Subject to certain exceptions, any natural person may be elected as a building society director (section 60 of the 1986 Act). Members have the right to nominate any candidate for election. Unless that person is subject to an Authority prohibition order, the board cannot refuse to accept a candidates nomination because the board does not regard that person as fit and proper. Prior to the election, the board should take reasonable steps to establish whether there are any facts or matters concerning the candidates fitness and propriety which the members should be aware of. If there are, the board should bring them to the members' attention before the election takes place. The Authoritywill not vet candidates for election.
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BSOG 1.3.4
See Notes
A person elected as an executive or non-executive director of a building society must not exercise a controlled function unless the Authoritygives its approval (sections 59 and 60 of the Act). The Authoritywill not approve a director unless it is satisfied that he meets, and will continue to meet, the Fit and Proper Test for Approved Persons (see the Fit and Proper Test for Approved Persons sourcebook in the Authority's Handbook (FIT)). An approved person must also comply with the requirements of the Statement of Principle and Code of Practice for Approved Persons sourcebook in the Authority's Handbook (APER).
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Other requirements and guidance
BSOG 1.3.5
See Notes
Part VII of the 1986 Act contains requirements relating to the management of building societies.
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BSOG 1.3.6
See Notes
Every building society must have at least two directors and one of the directors must be appointed chairman (section 58 of the 1986 Act). The chairman should not hold an executive position in the society. This helps to separate strategic direction from the day to day management of the business and helps the chairman to take an independent view of management issues. It also protects against undue concentration of power.
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BSOG 1.3.7
See Notes
Every building society must have a chief executive (section 59(1) of the 1986 Act). The chief executive should be a member of the board.
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BSOG 1.3.8
See Notes
A small building society may not need as many executive directors as a large building society, but every society should have at least one.
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BSOG 1.3.9
See Notes
Given the mutual status of building societies, a clear majority of directors on a societys board should be non-executive. Non-executive directors should not be given the expectation that they will remain on the board until retirement. They should serve for a fixed term, both initially and for any subsequent term. The appropriate ratio of non-executives to executives will vary with the scale, nature and complexity of the societys business.
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BSOG 1.3.10
See Notes
It will rarely be appropriate or desirable for a chief executive or other executive director to remain as a non-executive board member after his or her retirement.
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BSOG 1.3.11
See Notes
The board should have an appropriate range of skills and experience to control and direct the societys activities effectively. The composition of the board should be reviewed at regular intervals to ensure that its management and other resources are at least adequate for the society's current business and the business it proposes to undertake.
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BSOG 1.3.12
See Notes
When a director is to be appointed under a formal service contract, the board should consider carefully the terms of the contract it offers. When it does so, it should take into account (for example) the need to attract and retain directors with appropriate experience, knowledge and skill; the need to preserve the boards freedom of action; the potential cost of the contract proposed; the period of notice the society will have to give, and the potential liability it will incur, if it terminates the contract other than for misconduct. The objective should be for notice or contract periods of one year or less.
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BSOG 1.3.13
See Notes
The Accounts Regulations require a building society to give particulars of its directors and chief executives service contracts in its annual Report and Accounts. If there are no service contracts, the building society should say so.
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BSOG 1.3.14
See Notes
Every building society must have a secretary (section 59(2) of the 1986 Act). The secretary should ensure that board procedures are followed and regularly reviewed. He should also provide guidance on the boards responsibilities and how they should be discharged.
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Dealings with directors
BSOG 1.3.15
See Notes
Part VII of the 1986 Act places restrictions on certain types of dealing between a building society and its directors. For example:
(1) it requires a director, who is interested in a contract with the society, to declare that interest to the board (section 63 of the 1986 Act); and
(2) it prohibits a building society from entering into an arrangement, by which a director will acquire a non-cash asset of more than a certain value from the society, unless the society has approved the arrangement by resolution at a general meeting.
A building society should maintain written procedures and controls which ensure compliance with these restrictions.- 01/01/2007
Loans to directors
BSOG 1.3.16
See Notes
The 1986 Act also restricts a building societys ability to make loans to a director or a person connected with a director (section 65 of the 1986 Act). In the circumstances, it would be inappropriate for a building society to follow its usual loan procedures when a director or connected person makes a loan application. The responsibility for approving such loans should not rest with staff members, even if the loan falls within a normal staff mandate. A building society should have written procedures for dealing with loan applications from directors or persons connected with them and every director should be familiar with them. Those procedures should include consideration by the board, or a board committee, before any loan application is approved. That review should have regard, for example, to the terms of the proposed loan and whether it is permitted by the 1986 Act.
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BSOG 1.4
Accounting records and reporting requirements
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Accounting records and systems
BSOG 1.4.1
See Notes
Every building society is required (by section 71 of the 1986 Act) to keep accounting records which:
(1) explain its transactions;
(2) disclose, with reasonable accuracy and promptness, the state of its business at any time; and
(3) enable the directors and the society to properly discharge their respective duties under the 1986 Act and article 4 of the IAS Regulations (if applicable).
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BSOG 1.4.2
See Notes
The accounting records should contain:
(1) day to day entries of all sums received and paid by the society;
(2) day to day entries of every transaction which will, or may reasonably be expected to, give rise to assets or liabilities of the society; and
(3) a record of the societys assets and liabilities and, in particular, the assets and liabilities of any class specifically regulated under section 6 (the lending limit) and section 7 (the funding limit) of the 1986 Act.
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Reporting requirements
BSOG 1.4.3
See Notes
The Accounts Regulations set out specific legal and regulatory requirements about the form and content of the financial statements which a building society and its directors must produce. A building society should ensure that the documents it presents to its members are understandable and balanced so that they report the societys setbacks as well as its successes.
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BSOG 1.4.4
See Notes
The Accounts Regulations and the 1986 Act require a building society to disclose to its members, by its annual report and accounts:
(1) the interests of the societys directors;
(2) the interests of its chief executive (on the matter of service contracts) and other officers (on the matter of options to subscribe for shares or debentures);
(3) individual directors remuneration;
(4) particulars of service contracts for the directors and chief executive;
(5) current and past directors additional retirement benefits; and
(6) directors interests in the shares or debentures of a connected undertaking.
In the interests of transparency, a building society should also explain whether it adheres to some or all of the Combined Code and, if so, in what respects.- 01/01/2007
BSOG 1.5
Electronic communications
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BSOG 1.5.1
See Notes
The Electronic Communications Order allows a building society to communicate electronically with its members on constitutional matters, including those referred to in later chapters of this Guide, if certain conditions are met. The Order covers communications about the business to be transacted at annual general meetings. It also covers communications on occasional matters, such as special meetings, mergers and transfers of business. In all cases the consent of the member or other person to the means of communication must be obtained.
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BSOG 1.5.2
See Notes
The Electronic Communications Order does not amend the 1986 Act requirement to submit certain returns to be placed on its public file. Nor does it affect the supervisory financial returns required to be submitted by the rules in the Authoritys Supervision manual.
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BSOG 1.5.3
See Notes
This Guide reflects law and practice as at 23rd November 2006and does not take into account subsequent developments.
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