Small Business, Enterprise and Employment Bill (HC Bill 11)

(2) For the italic heading before section 246B substitute—

(3) After section 246B insert—

“246C Creditors’ ability to opt-out of receiving certain notices

(1) Any provision of the rules which requires an office-holder of a
5company to give a notice to creditors of the company does not apply, in
circumstances prescribed by the rules, in relation to opted-out
creditors.

(2) Subsection (1)—

(a) does not apply in relation to a notice of a distribution or
10proposed distribution to creditors;

(b) is subject to any order of the court requiring a notice to be given
to all creditors (or all creditors of a particular category).

(3) Except as provided by the rules, a creditor may participate in a
qualifying decision procedure or a deemed consent procedure even
15though, by virtue of being an opted-out creditor, the creditor does not
receive notice of it.

(4) In this section—

• “give” includes deliver, furnish or send;

• “notice” includes any document or information in any other form;

• 20“office-holder”, in relation to a company, means—

  (a)

  a liquidator, provisional liquidator, administrator or
  administrative receiver of the company,

  (b)

  a receiver appointed under section 51 in relation to any
  property of the company, or

  (c)

  25the supervisor of a voluntary arrangement which has
  taken effect under Part 1 in relation to the company.”

(4) After section 248 insert—

“248A Opted-out creditor”

(1) For the purposes of this Group of Parts “opted-out creditor”, in relation
30to an office-holder of a company, means a person who—

(a) is a creditor of the company, and

(b) in accordance with the rules has elected (or is deemed to have
elected) to be (and not to cease to be) an opted-out creditor in
relation to the office-holder.

(2) 35In this section, “office-holder”, in relation to a company, means—

(a) a liquidator, provisional liquidator, administrator or
administrative receiver of the company,

(b) a receiver appointed under section 51 in relation to any
property of the company, or

(c) 40the supervisor of a voluntary arrangement which has taken
effect under Part 1 in relation to the company.”

(5) In Schedule 8 (provisions which may be included in company insolvency

rules), after paragraph 5 insert—

“5A Provision for enabling a creditor of a company to elect to be, or to
cease to be, an opted-out creditor in relation to an office-holder of the
company (within the meaning of section 248A), including, in
5particular, provision—

(a) for requiring an office-holder to provide information to
creditors about how they may elect to be, or cease to be,
opted-out creditors;

(b) for deeming an election to be, or cease to be, an opted-out
10creditor in relation to a particular office-holder of a company
to be such an election also in relation to any other office-
holder of the company.”

113 Ability for creditors to opt not to receive certain notices: individual
insolvency

(1) 15The Insolvency Act 1986 is amended as follows.

(2) For the italic heading before section 379B substitute—

(3) After section 379B insert—

“379C Creditors’ ability to opt-out of receiving certain notices

(1) Any provision of the rules which requires an office-holder to give a
20notice to creditors of an individual does not apply, in circumstances
prescribed by the rules, in relation to opted-out creditors.

(2) Subsection (1)—

(a) does not apply in relation to a notice of a distribution or
proposed distribution to creditors;

(b) 25is subject to any order of the court requiring a notice to be given
to all creditors (or all creditors of a particular category).

(3) Except as provided by the rules, a creditor may participate in a
qualifying decision procedure or a deemed consent procedure even
though, by virtue of being an opted-out creditor, the creditor does not
30receive notice of it.

(4) In this section—

• “give” includes deliver, furnish or send;

• “notice” includes any document or information in any other form;

• “office-holder”, in relation to an individual, means—

  (a)

  35where a bankruptcy order is made against the
  individual, the official receiver or the trustee in
  bankruptcy;

  (b)

  where an interim receiver of the individual’s property is
  appointed, the interim receiver;

  (c)

  40the supervisor of a voluntary arrangement approved
  under Part 8 in relation to the individual.”

(4) After section 383 insert—

“383A Opted-out creditor”

(1) For the purposes of this Group of Parts “opted-out creditor” in relation
to an office-holder for an individual means a person who—

(a) 5is a creditor of the individual, and

(b) in accordance with the rules has elected (or is deemed to have
elected) to be (and not to cease to be) an opted-out creditor in
relation to the office-holder.

(2) In this section, “office-holder”, in relation to an individual, means—

(a) 10where a bankruptcy order is made against the individual, the
official receiver or the trustee in bankruptcy;

(b) where an interim receiver of the individual’s property is
appointed, the interim receiver;

(c) the supervisor of a voluntary arrangement approved under Part
158 in relation to the individual.”

(5) In Schedule 9 (provisions capable of inclusion in individual insolvency rules),
after paragraph 7 insert—

“7A Provision for enabling a creditor of an individual to elect to be, or to
cease to be, an opted-out creditor in relation to an office-holder for
20the individual (within the meaning of section 383A), including, in
particular, provision—

(a) for requiring an office-holder to provide information to
creditors about how they may elect to be, or cease to be,
opted-out creditors;

(b) 25for deeming an election to be, or cease to be, an opted-out
creditor in relation to a particular office-holder for an
individual to be such an election also in relation to any other
office-holder for the individual.”

114 Sections 110 to 113: further amendments

(1) 30The appropriate authority may by regulations amend the Insolvency Act
1986—

(a) to remove requirements to hold meetings of a company’s creditors and
to provide for decisions of a company’s creditors to be made in ways
provided for by sections 246ZE and 246ZF of that Act;

(b) 35to remove requirements to hold meetings of a company’s
contributories and to provide for decisions of a company’s
contributories to be made in ways provided for by sections 246ZE and
246ZF of that Act;

(c) to remove requirements to hold a general meeting of a company when
40the company’s affairs are fully wound up;

(d) to remove requirements to hold meetings of an individual’s creditors
and to provide for decisions of an individual’s creditors to be made in
ways provided for by sections 379ZA and 379ZB of that Act;

(e) to remove requirements for notices or other documents or information
45to be sent by office-holders to opted-out creditors within section 248A
or 383A of that Act.

(2) The “appropriate authority” means—

(a) in relation to matters within subsection (3), the Scottish Ministers, and

(b) in relation to all other matters, the Secretary of State.

(3) The matters within this subsection are—

(a) the winding up of a company registered in Scotland,

(b) 5a receivership pursuant to the appointment of a receiver under section
51 of the Insolvency Act 1986,

(c) the administrative receivership of a company registered in Scotland.

(4) Regulations under this section—

(a) if made by the Scottish Ministers, are subject to the affirmative
10procedure;

(b) if made by the Secretary of State, are subject to affirmative resolution
procedure.

Administration

115 Extension of administrator’s term of office

15In paragraph 76(2)(b) of Schedule B1 to the Insolvency Act 1986
(administrator’s term of office may be extended for up to six months by
consent) for “six months” substitute “one year”.

116 Administration: payments to unsecured creditors

(1) Schedule B1 to the Insolvency Act 1986 (administration) is amended as follows.

(2) 20In paragraph 65(3) (restrictions on distribution to unsecured creditors) for
“unless” substitute “unless—

(a) the distribution is made by virtue of section 176A(2)(a), or

(b)”.

(3) In paragraph 83 (power to move from administration to creditors’ voluntary
25liquidation), in sub-paragraphs (1)(b) and (2)(b), after “any)” insert “which is
not a distribution by virtue of section 176A(2)(a)”.

117 Administration: sales to connected persons

(1) Schedule B1 to the Insolvency Act 1986 (administration) is amended as follows.

(2) Paragraph 60 (power of administrators) becomes sub-paragraph (1) of that
30paragraph.

(3) After that sub-paragraph insert—

“(2) But the power to sell, hire out or otherwise dispose of property is
subject to any regulations that may be made under paragraph 60A.”

(4) After paragraph 60 insert—

“60A (1) 35The Secretary of State may by regulations make provision for—

(a) prohibiting, or

(b) imposing requirements or conditions in relation to,

the disposal, hiring out or sale of property of a company by the
administrator to a connected person in circumstances specified in the
regulations.

(2) Regulations under this paragraph may in particular require the
5approval of, or provide for the imposition of requirements or
conditions by—

(a) creditors of the company,

(b) the court, or

(c) a person of a description specified in the regulations.

(3) 10In sub-paragraph (1), “connected person”, in relation to a company,
means—

(a) a relevant person in relation to the company, or

(b) a company connected with the company.

(4) For the purposes of sub-paragraph (3)—

(a) 15“relevant person”, in relation to a company, means—

(i) a director or other officer, or shadow director, of the
company;

(ii) a non-employee associate of such a person;

(iii) a non-employee associate of the company;

(b) 20a company is connected with another if any relevant person
of one is or has been a relevant person of the other.

(5) In sub-paragraph (4), “non-employee associate” of a person means a
person who is an associate of that person otherwise than by virtue of
employing or being employed by that person.

(6) 25Subsection (10) of section 435 (extended definition of company)
applies for the purposes of sub-paragraphs (3) to (5) as it applies for
the purposes of that section.

(7) Regulations under this paragraph may—

(a) make different provision for different purposes;

(b) 30make incidental, consequential, supplemental and
transitional provision.

(8) Regulations under this paragraph are to be made by statutory
instrument.

(9) An instrument containing regulations under this paragraph is
35subject to annulment in pursuance of a resolution of either House of
Parliament.

(10) This paragraph expires at the end of the period of 5 years beginning
with the day on which it comes into force unless the power conferred
by it is exercised during that period.”

118 40Attachment of floating charges on administration (Scotland)

(1) Paragraph 115 of Schedule B1 (administration) to the Insolvency Act 1986 is
amended as follows.

(2) After sub-paragraph (1) insert—

“(1A) In Scotland, sub-paragraph (1B) applies in connection with the
giving by the court of permission as provided for in paragraph
65(3)(b).

(1B) 5On the giving by the court of such permission, any floating charge
granted by the company shall, unless it has already so attached,
attach to the property which is subject to the charge.”

(3) In sub-paragraph (3), omit the words from “and” to the end.

(4) After that sub-paragraph insert—

“(4) 10Attachment of a floating change under sub-paragraph (1B) or (3) has
effect as if the charge is a fixed security over the property to which it
has attached.”

Small debts

119 Creditors not required to prove small debts: company insolvency

15In Schedule 8 to the Insolvency Act 1986 (provisions capable of inclusion in
company insolvency rules) after paragraph 13 insert—

“13A Provision for a creditor who has not proved a small debt to be treated
as having done so for purposes relating to the distribution of a
company’s property (and for provisions of, or contained in
20legislation made under, this Act to apply accordingly).”

120 Creditors not required to prove small debts: individual insolvency

In Schedule 9 to the Insolvency Act 1986 (provisions capable of inclusion in
individual insolvency rules) after paragraph 18 insert—

“18A Provision for a creditor who has not proved a small debt to be treated
25as having done so for purposes relating to the distribution of a
bankrupt’s estate (and for provisions of, or contained in legislation
made under, this Act to apply accordingly).”

Trustees in bankruptcy

121 Trustees in bankruptcy

(1) 30In the Insolvency Act 1986, before section 292 insert—

“291A First trustee in bankruptcy

(1) On the making of a bankruptcy order the official receiver becomes
trustee of the bankrupt’s estate, unless the court appoints another
person under subsection (2).

(2) If when the order is made there is a supervisor of a voluntary
arrangement approved in relation to the bankrupt under Part 8, the
court may on making the order appoint the supervisor of the
arrangement as the trustee.

(3) 5Where a person becomes trustee of a bankrupt’s estate under this
section, the person must give notice of that fact to the bankrupt’s
creditors (or, if the court so allows, advertise it in accordance with the
court’s directions).

(4) A notice or advertisement given by a trustee appointed under
10subsection (2) must explain the procedure for establishing a creditors’
committee under section 301.”

(2) Schedule 9 makes consequential amendments.

Voluntary arrangements

122 Time limit for challenging IVAs

15In section 262(3)(a) of the Insolvency Act 1986 (time limit for challenging
voluntary arrangement), for the words from “the report” to “section 259”
substitute “the creditors approved the arrangement or, where a report was
required to be made to the court under section 259(1)(b), the day on which the
report was made”.

123 20Abolition of fast-track voluntary arrangements

(1) Omit sections 263A to 263G of the Insolvency Act 1986 (fast-track voluntary
arrangements (England and Wales)) and the cross heading immediately before
section 263A.

(2) In consequence of the repeals made by subsection (1), in the Insolvency Act
251986—

(a) in section 282 (court’s power to annul bankruptcy order), in subsection
(4), omit “or 263D”, and

(b) in Schedule 4A (bankruptcy restrictions order and undertaking), in
paragraph 11, omit “, 263D”.

(3) 30Also in consequence of the repeals made by subsection (1), in the Enterprise
Act 2002—

(a) omit section 264(2) to (4) (orders to extend application of provisions of
sections 263B to 263G of the Insolvency Act 1986),

(b) in Schedule 22, omit paragraph 2 (fast-track voluntary arrangements)
35and the heading immediately before it, and

(c) in Schedule 23 (minor and consequential amendments), omit
paragraph 4(a) and the “and” immediately after it.

(4) The repeals made by this section have no effect in relation to a case where a
debtor has submitted the document and statement mentioned in section
40263B(1) to the official receiver before this section comes into force.

Progress reports

124 Voluntary winding-up: progress reports

(1) The Insolvency Act 1986 is amended as follows.

(2) In section 92A (progress reports in members’ voluntary winding-up)—

(a) 5in subsection (1), for the words from “in the event” to “one year,”
substitute “where the company is registered in England and Wales”;

(b) in the heading, omit “at year’s end”.

(3) In section 104A (progress reports in creditors’ voluntary winding-up)—

(a) in subsection (1), for the words from “If the” to “one year,” substitute
10“Where the company is registered in England and Wales”;

(b) in the heading, omit “at year’s end”.

(4) In the table in Schedule 10 (punishment of offences)—

(a) in the entry for section 92A(2), in column 2, omit “at year’s end”;

(b) in the entry for section 104A(2), in column 2, omit “at year’s end”.

15Regulation of insolvency practitioners: amendments to existing regime

125 Recognised professional bodies: recognition

(1) In Part 13 of the Insolvency Act 1986 (insolvency practitioners), for section 391
(recognised professional bodies) (as substituted by section 17 of the
Deregulation Act 2014) substitute—

“391 20Recognised professional bodies

(1) The Secretary of State may by order, if satisfied that a body meets the
requirements of subsection (4), declare the body to be a recognised
professional body which is capable of providing its insolvency
specialist members with full authorisation or partial authorisation.

(2) 25The Secretary of State may by order, if satisfied that a body meets the
requirements of subsection (4), declare the body to be a recognised
professional body which is capable of providing its insolvency
specialist members with partial authorisation only of the kind specified
in the order (as to which, see section 390A(1)).

(3) 30Section 391A makes provision about the making by a body of an
application to the Secretary of State for an order under this section.

(4) The requirements are that—

(a) the body regulates (or is going to regulate) the practice of a
profession,

(b) 35the body has rules which it is going to maintain and enforce for
securing that its insolvency specialist members—

(i) are fit and proper persons to act as insolvency
practitioners, and

(ii) meet acceptable requirements as to education and
40practical training and experience, and

(c) the body’s rules and practices for or in connection with
authorising persons to act as insolvency practitioners, and its

rules and practices for or in connection with regulating persons
acting as such, are designed to ensure that the regulatory
objectives are met (as to which, see section 391C).

(5) An order of the Secretary of State under this section has effect from such
5date as is specified in the order.

(6) An order under this section may be revoked by an order under section
391L or 391N (and see section 415A(1)(b)).

(7) In this Part—

(a) references to members of a recognised professional body are to
10persons who, whether members of that body or not, are subject
to its rules in the practice of the profession in question;

(b) references to insolvency specialist members of a professional
body are to members who are permitted by or under the rules
of the body to act as insolvency practitioners.

(8) 15A reference in this Part to a recognised professional body is to a body
recognised under this section (and see sections 391L(6) and 391N(5)).

391A Application for recognition as recognised professional body

(1) An application for an order under section 391(1) or (2) must—

(a) be made to the Secretary of State in such form and manner as the
20Secretary of State may require,

(b) be accompanied by such information as the Secretary of State
may require, and

(c) be supplemented by such additional information as the
Secretary of State may require at any time between receiving the
25application and determining it.

(2) The requirements which may be imposed under subsection (1) may
differ as between different applications.

(3) The Secretary of State may require information provided under this
section to be in such form, and verified in such manner, as the Secretary
30of State may specify.

(4) An application for an order under section 391(1) or (2) must be
accompanied by—

(a) a copy of the applicant’s rules,

(b) a copy of the applicant’s policies and practices, and

(c) 35a copy of any guidance issued by the applicant in writing.

(5) The reference in subsection (4)(c) to guidance issued by the applicant is
a reference to guidance or recommendations which are—

(a) issued or made by it which will apply to its insolvency specialist
members or to persons seeking to become such members,

(b) 40relevant for the purposes of this Part, and

(c) intended to have continuing effect,

including guidance or recommendations relating to the admission or
expulsion of members.

(6) The Secretary of State may refuse an application for an order under
45section 391(1) or (2) if the Secretary of State considers that recognition
of the body concerned is unnecessary having regard to the existence of

one or more other bodies which have been or are likely to be recognised
under section 391.

(7) Subsection (8) applies where the Secretary of State refuses an
application for an order under section 391(1) or (2); and it applies
5regardless of whether the application is refused on the ground
mentioned in subsection (6), because the Secretary of State is not
satisfied as mentioned in section 391(1) or (2) or because a fee has not
been paid (see section 415A(1)(b)).

(8) The Secretary of State must give the applicant a written notice of the
10Secretary of State’s decision; and the notice must set out the reasons for
refusing the application.”

(2) An order under section 391(1) or (2) of the Insolvency Act 1986 made before the
coming into force of this section is, following the coming into force of this
section, to be treated as if it were made under section 391(1) or (as the case may
15be) (2) as substituted by subsection (1) of this section.

126 Regulatory objectives

(1) After section 391A of the Insolvency Act 1986 (inserted by section 125) insert—

“Regulatory objectives

391B Application of regulatory objectives

(1) In discharging regulatory functions, a recognised professional body
20must, so far as is reasonably practicable, act in a way—

(a) which is compatible with the regulatory objectives, and

(b) which the body considers most appropriate for the purpose of
meeting those objectives.

(2) In discharging functions under this Part, the Secretary of State must
25have regard to the regulatory objectives.

391C Meaning of “regulatory functions” and “regulatory objectives”

(1) This section has effect for the purposes of this Part.

(2) “Regulatory functions”, in relation to a recognised professional body,
means any functions the body has—

(a) 30under or in relation to its arrangements for or in connection
with—

(i) authorising persons to act as insolvency practitioners, or

(ii) regulating persons acting as insolvency practitioners, or

(b) in connection with the making or alteration of those
35arrangements.

(3) “Regulatory objectives” means the objectives of—

(a) having a system of regulating persons acting as insolvency
practitioners that—

(i) secures fair treatment for persons affected by their acts
40and omissions,

(ii) reflects the regulatory principles, and

(iii) ensures consistent outcomes,