FCA authorisation: frequently asked questions

The questions businesses ask us most, with straight answers. Most come back to one point: the FCA will not tell you whether your business needs authorisation, so a written opinion from a regulatory solicitor is usually how you get an answer you can rely on.

Why can’t I just ask the FCA?

You can contact the FCA, but it does not generally give individual businesses advice on whether they need authorisation. It will usually point you to its Handbook, and in particular the Perimeter Guidance manual (PERG), and suggest that you take your own legal advice. Working out how the guidance applies to your business is left to you.

Firms with genuinely innovative products can apply to the FCA’s Innovation Pathways service, which can help them understand which rules apply. The FCA says that service is not a replacement for legal advice or consultancy, and it will not tell you how to structure your business. A conversation with the FCA contact centre is not a ruling, and it is not something you can show a bank or an investor. What the FCA will and will not tell you

Can’t I just get authorised anyway?

You can apply, but it is rarely the safe default it looks like.

• Cost. There is an application fee, then annual FCA fees and levies, compliance resources, professional indemnity insurance and, for some activities, capital requirements. These continue for as long as you are authorised.
• Time. The FCA has up to six months to decide a complete application and up to twelve months for an incomplete one, and you cannot start the regulated activity until you are authorised.
• The FCA expects you to need what you ask for. An application has to show that you meet the threshold conditions and that you will actually carry on the activities you are applying for. The FCA can vary or cancel a permission that a firm has not used for 12 months or more, so applying for permissions you do not need is not a neutral step.
• Authorisation applies to the whole firm. Once you are authorised you are supervised, you have to report to the FCA, senior people come within the Senior Managers and Certification Regime, and FCA rules such as the Consumer Duty may apply to how you deal with customers.

Most businesses are better off knowing first whether they need authorisation at all. If they do, we can introduce them to specialists in direct authorisation or in appointed representative arrangements. Your options if you are inside the perimeter

What happens if we have an opinion that we do not need to be regulated, but the FCA says we do?

A written opinion does not bind the FCA or a court. If the FCA takes a different view, it will usually raise it with you and expect you to stop the activity, change how you do it or apply for authorisation. Where it has concerns about harm to customers, it has wider powers, including adding a business to its public Warning List of unauthorised firms.

The opinion still matters a great deal in that situation, for three reasons.

• It shows you took the question seriously. Carrying on a regulated activity without authorisation is an offence under section 23 of FSMA, but it is a defence to show that you took all reasonable precautions and exercised all due diligence. A properly instructed opinion obtained before you started can help show the steps you took, although whether the defence succeeds depends on all the facts.
• It can be relevant to your contracts. Agreements made in breach of the general prohibition can be unenforceable against your customers. Under section 28 a court can still allow them to be enforced if it is just and equitable, and one of the things it considers is whether you reasonably believed you were not breaching the general prohibition. An opinion may help show that belief, but the court decides.
• It gives you a route if the opinion was wrong. If an opinion was given negligently, you may have a claim against the firm that gave it. Solicitors in England and Wales must carry professional indemnity insurance.

An opinion is only as good as the facts it was based on. If what you told the solicitor was accurate and complete, and you ran the business as described, you are in a much stronger position. If your model has changed since, the opinion may not cover what you now do. If the FCA does get in touch, speak to your solicitor before you reply.

None of this guarantees an outcome. An opinion does not bind the FCA or a court, guarantee a defence or guarantee that your agreements will be enforceable. It is why we recommend a written opinion before you rely on being outside the perimeter, not after a problem arises.

Why do I need a written opinion from a regulatory lawyer?

Because the answer depends on your facts and on detailed legislation, and a written opinion is the document that applies one to the other.

• It applies the law to your business. A solicitor works from your actual model, money flows, contracts and marketing, not from a general description. General guidance, including ours, cannot do that.
• Other people ask for it. Banks, payment providers, investors, advertising platforms and auditors usually want an independent, documented view rather than your own assessment.
• It can support your position if you are challenged. As above, it can help show the precautions you took and why you believed you were outside the perimeter, although it is not conclusive.
• It comes from someone accountable. A solicitor is regulated by the Solicitors Regulation Authority, carries professional indemnity insurance and puts their name to the opinion. Advice from a solicitor is also usually protected by legal professional privilege.
• It often changes the plan. An opinion can show small changes to your model or your marketing that keep you outside the perimeter, or tell you early that you need authorisation before you have built around the wrong answer.

Perimeter questions turn on specialist legislation such as the Financial Services and Markets Act 2000, the Regulated Activities Order, the Financial Promotion Order and the payments regulations, read alongside FCA guidance. That is why the opinion should come from a solicitor who works in financial services regulation. How written opinions work

Our adverts keep getting blocked on Google or Meta. Can you help?

Often, yes. Both platforms verify UK financial services advertisers. If your business does not need authorisation, the usual routes are to have your promotions approved by an authorised firm with the section 21 approver permission, which can also start your Google verification, or a genuine appointed representative arrangement with an authorised principal. Which fits depends on what you advertise and on each platform’s current rules, and neither guarantees that an advert will run. We do not approve promotions ourselves, but we introduce you to firms that provide both. Google and Meta ads without an FCA number

What happens on the first call?

It is a short conversation by phone, Teams or Zoom. We ask what your business does, how money moves through it, how you market it, whether you already have a law firm or regulatory consultant and what has prompted the question. We then tell you whether the question needs a written opinion and, if it does, who should provide it. You do not need to prepare any documents. How it works

Is the first call really not charged?

Yes. Your first call with us is not charged and carries no obligation. If you are introduced to a solicitor, their first scoping call is not charged either. If you then want a written opinion, the solicitor quotes before any work starts and you pay them directly.

How are you paid?

The solicitors and specialists we introduce you to pay us an introduction fee. We would rather you heard that from us. The solicitors must also make sure you know about any referral fee arrangement under their own professional rules. How it works

Do you give legal advice?

No. We give general information and introduce you to solicitors and specialists. Non-Regulated is a trading name of Introvisory Ltd, which is authorised and regulated by the FCA for corporate finance business. Our perimeter calls and introductions are not services we provide under that authorisation. Our regulatory status

Will you tell me whether my business needs authorisation?

No, not as a conclusion. On the call we explain the rules and the factors that usually decide the answer and tell you which questions apply to you, but we do not apply the law to your facts. We never tell you that your business is outside the perimeter. That is what a solicitor’s written opinion does. If it is already clear that you need authorisation or advice, we will say so and point you to the right people.

What if we already have a law firm or regulatory consultant?

Tell us when you book. If you already have an adviser on the question, going back to them is often the quickest route. A second opinion can be worth having when a bank or investor wants an independent view or when the stakes are high, and our solicitors can quote for one, but we will tell you honestly if we do not think it adds much.

How much does a written opinion cost?

As a rough guide, written opinions from the solicitors we work with start from around £8,000 plus VAT. Yours might cost less and it might cost more. It depends on a lot of factors, including how complex your business is, how many activities and promotions need to be covered, whether the law on your point is settled and how much information you have ready.

The solicitor confirms the scope and quotes before any work starts, so you know the cost before you commit, and you pay them directly. If that is more than you expected, say so on the call and we can talk about whether an opinion is the right step for you yet. How written opinions work

Can one opinion cover both operations and marketing?

Yes, if it is scoped to. Make sure the instruction covers both what you do and how you market it, because passing one test does not clear the other. Why the two tests are separate

Will you share my details?

Only with the solicitors and specialists we work with, so they can help with your question. Everything you tell us is 100% confidential and will not be shared with unrelated third parties. Privacy notice