This afternoon ASIC has released the findings of a large research project it undertook into member experiences in setting up and running a SMSF and whether advice providers are complying with the law when providing personal advice to retail clients to set up an SMSF.
ASIC reviewed 250 client files randomly selected based on ATO data and assessed compliance with the Corporations Act’s best interests duty and related obligations.
The findings of the review released in Report 575: SMSFs: Improving the quality of advice and member experiences, indicate that in 10 per cent of the files reviewed the client was likely to be significantly worse off in retirement due to the advice.
It also found that in 19 per cent of cases, clients were at an increased risk of financial detriment due to a lack of diversification.
The report also stated that 91 per cent of files reviewed the adviser did not comply with Corporations Act’s best interests duty and related obligations, which was previously revealed during the Royal Commission hearings.
Out of the 102 AFS licensees in the review, advisers from 97 licensees were assessed as providing non-compliant advice, the report said.
“We will be requiring AFS licensees to review and remediate clients who received non-compliant advice,” ASIC stated in the report.
“As part of this work, licensees may be required to review and remediate a broader sample of SMSF advice than that reviewed as part of this project. Where appropriate we will also take regulatory action.”
As part of the project, the report said ASIC also identified several limited AFS licensees, and advice providers operating under a limited licence authorisation, where the advice provided was deficient.
“We will provide appropriate messaging to licensees and advice providers in relation to their obligations.”
Property one-stop-shops it said were identified as an area of “significant concern,” ASIC said.
“These models tend to promote the purchase of geared residential property through an SMSF, arranged by groups of related real estate agents, developers, mortgage brokers, accountants and financial advisers,” it explained.
The one-stop shop model, the report said, creates inherent conflicts of interest that may affect the advice given to a client to set up an SMSF, make subsequent investments, or use specific services.
“These conflicts can arise from direct or indirect commissions, referral payment arrangements, representative remuneration structures or even management pressures,” it said.
“In light of the findings from this project, we will continue to conduct surveillance on these property one-stop shop operators and take enforcement action where appropriate.”
ASIC said it will also work with other regulators, including the ATO and APRA, to develop a holistic approach to addressing problems that it is seeing with property one-stop shops.
The review also identified concerns with low balance SMSFs being established, with 32 per cent of SMSFs set up with a balance of below $200,000.
“There was often no reasonable explanation recorded in the client file for setting up a lower balance SMSF,” the report said.
“The costs of setting up and operating an SMSF with a balance of $200,000 or below are unlikely to be competitive compared with a fund regulated by APRA. Therefore, the client may not be in a better position if they set up an SMSF than if they were to use an APRA-regulated fund.”
The review also identified a number of examples of advice providers recommending that clients set up an SMSF, even though the clients had asked for a simple and low-maintenance superannuation solution. On the face of it, we consider this to be inappropriate advice.
The release of this report has been long awaited by the industry, with ASIC deputy chair Peter Kell first announcing a major shadow shopping project into SMSF advice in early 2017.
These latest findings also follow ASIC’s review into SMSF advice and unlicensed accountants released earlier in the year, which found no systemic concerns but did identify significant levels of inaccurate and out of date information on websites and in promotional material of accountants reviewed.
ASIC deputy chair Peter Kell said the standard of advice on SMSFs needed to improve.
“A healthy and robust SMSF sector is an important part of our super system. However, it is clear lots of people are setting up self-managed super funds without knowing whether this is the best option,” said Mr Kell.
“The financial advice sector has significant work to do to lift their performance on this issue.”
High time ASIC, the amount of times property commissions are offered is just incredible, this has been going on for quite a while and has been spruiked since the
LRBA came in, you have allowed the damage to be done, sleeping on the wheel, worst kept secret!
Planner
91% Best Interest Duty failure would clearly indicate that the law is soooooooooooooo widely drafted that it is nearly impossible not to breach.
ASIC has successfully created Best Interest Duty to effectively determine any advice it chooses to as illegal.
The Advice industry is becoming untenable to even try to practice in.
Right as the baby boomers are starting to retire and the population needs more advice than ever.
Quality job ASIC and ODwyer.
Agree totally with your comment, Planner.
The discussion on diversification does not take into account the enormous variations around why people may do this such as smsf owns the commercial property that they then run their business through.
Having said that, also recognise that there are shonky groups doing the inappropriate hard sell on unsuspecting people as well.
I really don’t trust ASIC to be sensible or discerning enough to pick good from bad, they have more of a raze it all and salt the earth attitude
Good one Planner. Perhaps we should try to orchestrate an independent (am I now in trouble for using that word) review of the ASIC review. I am sure there would be much of value in their review – but it would be good to get a balanced look at their methodology. Quis custodiet ipsos custodes – who will guard the guards???
There was also a time in the last 3 years with some of the banks that if you wanted to lodge a fixed deposit of cash into your SMSF they would make the transaction very difficult unless you agreed to a meeting with one of their planners at the same time. The bank tellers said they were not authorised to complete the transaction without the meeting.
The bank far exceeded their powers when this was going on – but people put up with it – despite the hard sell
The RC revealed that ASIC had little interest into the sales practices of the banks. The other issue that ASIC, and the ACCC for that matter have little interest is Third Line Forcing of loan applicants to change life insurance as a condition of loan approval
I am an accountant and one of my clients is a simple tradie (a female actually). She said every time she walked into the bank they kept asking her if she wanted to set up a SMSF. I nearly fell off my chair. My client was actually getting frustrated that the bank teller kept on pushing it, even though my client said (on a number of times) they were not interested.
Wow Greg, that is unusual – were they pushing SMSF or super? Most banks would not promote the SMSF. Would that not be more likely indicative of an employee referring elsewhere (outside of the bank). Worth following up.