|
| |
|
(3) | A person is not guilty of an offence under this section if he proves |
| |
that, in respect of the conduct constituting the offence, he had no |
| |
intent to defraud or to conceal the state of his affairs. |
| |
(4) | In its application to a trading record subsection (2)(a) has effect as if |
| |
the reference to 12 months were a reference to two years. |
| 5 |
(5) | In subsection (4) “trading record” means a book, document or record |
| |
which shows or explains the transactions or financial position of a |
| |
person’s business, including— |
| |
(a) | a periodic record of cash paid and received, |
| |
(b) | a statement of periodic stock-taking, and |
| 10 |
(c) | except in the case of goods sold by way of retail trade, a |
| |
record of goods sold and purchased which identifies the |
| |
buyer and seller or enables them to be identified. |
| |
(6) | It is immaterial for the purposes of an offence under this section |
| |
whether or not the debt relief order in question is revoked after the |
| 15 |
conduct constituting the offence takes place (but no offence is |
| |
committed under this section by virtue of conduct occurring after the |
| |
| |
251Q | Fraudulent disposal of property |
| |
(1) | A person in respect of whom a debt relief order is made is guilty of |
| 20 |
an offence if he made or caused to be made any gift or transfer of his |
| |
property during the period between— |
| |
(a) | the start of the period of two years ending with the |
| |
| |
(b) | the end of the moratorium period. |
| 25 |
(2) | The reference in subsection (1) to making a transfer of any property |
| |
includes causing or conniving at the levying of any execution against |
| |
| |
(3) | A person is not guilty of an offence under this section if he proves |
| |
that, in respect of the conduct constituting the offence, he had no |
| 30 |
intent to defraud or to conceal the state of his affairs. |
| |
(4) | For the purposes of subsection (3) a person is to be taken to have |
| |
proved that he had no such intent if— |
| |
(a) | sufficient evidence is adduced to raise an issue as to whether |
| |
| 35 |
(b) | the contrary is not proved beyond reasonable doubt. |
| |
(5) | It is immaterial for the purposes of this section whether or not the |
| |
debt relief order in question is revoked after the conduct constituting |
| |
an offence takes place (but no offence is committed by virtue of |
| |
conduct occurring after the order is revoked). |
| 40 |
251R | Fraudulent dealing with property obtained on credit |
| |
(1) | A person in respect of whom a debt relief order is made is guilty of |
| |
an offence if during the relevant period he disposed of any property |
| |
which he had obtained on credit and, at the time he disposed of it, |
| |
| 45 |
|
| |
|
| |
|
(2) | Any other person is guilty of an offence if during the relevant period |
| |
he acquired or received property from a person in respect of whom |
| |
a debt relief order was made (the “debtor”) knowing or believing— |
| |
(a) | that the debtor owed money in respect of the property, and |
| |
(b) | that the debtor did not intend, or was unlikely to be able, to |
| 5 |
pay the money he so owed. |
| |
(3) | In subsections (1) and (2) “relevant period” means the period |
| |
| |
(a) | the start of the period of two years ending with the |
| |
| 10 |
(b) | the determination date. |
| |
(4) | A person is not guilty of an offence under subsection (1) or (2) if the |
| |
disposal, acquisition or receipt of the property was in the ordinary |
| |
course of a business carried on by the debtor at the time of the |
| |
disposal, acquisition or receipt. |
| 15 |
(5) | In determining for the purposes of subsection (4) whether any |
| |
property is disposed of, acquired or received in the ordinary course |
| |
of a business carried on by the debtor, regard may be had, in |
| |
particular, to the price paid for the property. |
| |
(6) | A person is not guilty of an offence under subsection (1) if he proves |
| 20 |
that, in respect of the conduct constituting the offence, he had no |
| |
intent to defraud or to conceal the state of his affairs. |
| |
(7) | In this section references to disposing of property include pawning |
| |
or pledging it; and references to acquiring or receiving property shall |
| |
| 25 |
(8) | It is immaterial for the purposes of this section whether or not the |
| |
debt relief order in question is revoked after the conduct constituting |
| |
an offence takes place (but no offence is committed by virtue of |
| |
conduct occurring after the order is revoked). |
| |
251S | Obtaining credit or engaging in business |
| 30 |
(1) | A person in respect of whom a debt relief order is made is guilty of |
| |
an offence if, during the relevant period— |
| |
(a) | he obtains credit (either alone or jointly with any other |
| |
person) without giving the person from whom he obtains the |
| |
credit the relevant information about his status; or |
| 35 |
(b) | he engages directly or indirectly in any business under a |
| |
name other than that in which the order was made without |
| |
disclosing to all persons with whom he enters into any |
| |
business transaction the name in which the order was made. |
| |
(2) | For the purposes of subsection (1)(a) the relevant information about |
| 40 |
a person’s status is the information that— |
| |
(a) | a moratorium is in force in relation to the debt relief order, |
| |
(b) | a debt relief restrictions order is in force in respect of him, or |
| |
(c) | both a moratorium and a debt relief restrictions order is in |
| |
| 45 |
| |
(3) | In subsection (1) “relevant period” means— |
| |
|
| |
|
| |
|
(a) | the moratorium period relating to the debt relief order, or |
| |
(b) | the period for which a debt relief restrictions order is in force |
| |
in respect of the person in respect of whom the debt relief |
| |
| |
| 5 |
(4) | Subsection (1)(a) does not apply if the amount of the credit is less |
| |
than the prescribed amount (if any). |
| |
(5) | The reference in subsection (1)(a) to a person obtaining credit |
| |
includes the following cases— |
| |
(a) | where goods are bailed to him under a hire-purchase |
| 10 |
agreement, or agreed to be sold to him under a conditional |
| |
| |
(b) | where he is paid in advance (in money or otherwise) for the |
| |
supply of goods or services. |
| |
251T | Offences: supplementary |
| 15 |
(1) | Proceedings for an offence under this Part may only be instituted by |
| |
the Secretary of State or by or with the consent of the Director of |
| |
| |
(2) | It is not a defence in proceedings for an offence under this Part that |
| |
anything relied on, in whole or in part, as constituting the offence |
| 20 |
was done outside England and Wales. |
| |
(3) | A person guilty of an offence under this Part is liable to |
| |
imprisonment or a fine, or both (but see section 430). |
| |
| |
251U | Approved intermediaries |
| 25 |
(1) | In this Part “approved intermediary” means an individual for the |
| |
time being approved by a competent authority to act as an |
| |
intermediary between a person wishing to make an application for a |
| |
debt relief order and the official receiver. |
| |
(2) | In this section “competent authority” means a person or body for the |
| 30 |
time being designated by the Secretary of State for the purposes of |
| |
granting approvals under this section. |
| |
(3) | Designation as a competent authority may be limited so as to permit |
| |
the authority only to approve persons of a particular description. |
| |
(4) | The Secretary of State may by regulations make provision as to— |
| 35 |
(a) | the procedure for designating persons or bodies as |
| |
| |
(b) | descriptions of individuals who are ineligible to be approved |
| |
| |
(c) | the procedure for granting approvals under this section; |
| 40 |
(d) | the withdrawal of designations or approvals under this |
| |
| |
| and provision made under paragraph (a) or (c) may include |
| |
provision requiring the payment of fees. |
| |
|
| |
|
| |
|
(5) | The rules may make provision about the activities to be carried out |
| |
by an approved intermediary in connection with an application for a |
| |
debt relief order, which may in particular include— |
| |
(a) | assisting the debtor in making the application; |
| |
(b) | checking that the application has been properly completed; |
| 5 |
(c) | sending the application to the official receiver. |
| |
(6) | The rules may also make provision about other activities to be |
| |
carried out by approved intermediaries. |
| |
(7) | An approved intermediary may not charge a debtor any fee in |
| |
connection with an application for a debt relief order. |
| 10 |
(8) | An approved intermediary is not liable to any person in damages for |
| |
anything done or omitted to be done when acting (or purporting to |
| |
act) as an approved intermediary in connection with a particular |
| |
application by a debtor for a debt relief order. |
| |
(9) | Subsection (8) does not apply if the act or omission was in bad faith. |
| 15 |
(10) | Regulations under subsection (4) shall be made by statutory |
| |
instrument subject to annulment in pursuance of a resolution of |
| |
either House of Parliament. |
| |
251V | Debt relief restrictions orders and undertakings |
| |
| Schedule 4ZB (which makes provision about debt relief restrictions |
| 20 |
orders and debt relief restrictions undertakings) has effect. |
| |
251W | Register of debt relief orders etc |
| |
| The Secretary of State must maintain a register of matters relating to— |
| |
| |
(b) | debt relief restrictions orders; and |
| 25 |
(c) | debt relief restrictions undertakings. |
| |
| |
| |
“the application date”, in relation to a debt relief order or an |
| |
application for a debt relief order, means the date on which |
| 30 |
the application for the order is made to the official receiver; |
| |
“approved intermediary” has the meaning given in section |
| |
| |
“debt relief order” means an order made by the official receiver |
| |
| 35 |
| |
(a) | in relation to an application for a debt relief order, the |
| |
| |
(b) | in relation to a debt relief order, the person in relation |
| |
to whom the order is made; |
| 40 |
“debt relief restrictions order” and “debt relief restrictions |
| |
undertaking” means an order made, or an undertaking |
| |
accepted, under Schedule 4ZB; |
| |
“the determination date”, in relation to a debt relief order or an |
| |
application for a debt relief order, means the date on which |
| 45 |
|
| |
|
| |
|
the application for the order is determined by the official |
| |
| |
“the effective date” has the meaning given in section 251E(7); |
| |
“excluded debt” is to be construed in accordance with section |
| |
| 5 |
“moratorium” and “moratorium period” are to be construed in |
| |
accordance with sections 251G and 251H; |
| |
“qualifying debt”, in relation to a debtor, has the meaning given |
| |
| |
“the register” means the register maintained under section |
| 10 |
| |
“specified qualifying debt” has the meaning given in section |
| |
| |
(2) | In this Part references to a creditor specified in a debt relief order as |
| |
the person to whom a qualifying debt is owed by the debtor include |
| 15 |
a reference to any person to whom the right to claim the whole or any |
| |
part of the debt has passed, by assignment or operation of law, after |
| |
the date of the application for the order.” |
| |
| |
| |
Schedule 4ZA to the Insolvency Act 1986 |
| 20 |
| |
conditions for making a debt relief order |
| |
| |
Conditions which must be met |
| |
Connection with England and Wales |
| 25 |
| |
(a) | is domiciled in England and Wales on the application date; |
| |
| |
(b) | at any time during the period of three years ending with |
| |
| 30 |
(i) | was ordinarily resident, or had a place of residence, |
| |
| |
(ii) | carried on business in England and Wales. |
| |
(2) | The reference in sub-paragraph (1)(b)(ii) to the debtor carrying on |
| |
| 35 |
(a) | the carrying on of business by a firm or partnership of |
| |
| |
(b) | the carrying on of business by an agent or manager for him |
| |
or for such a firm or partnership. |
| |
|
| |
|
| |
|
Debtor’s previous insolvency history |
| |
2 | The debtor is not, on the determination date— |
| |
(a) | an undischarged bankrupt; |
| |
(b) | subject to an interim order or voluntary arrangement |
| |
| 5 |
(c) | subject to a bankruptcy restrictions order or a debt relief |
| |
| |
3 | A debtor’s petition for the debtor’s bankruptcy under Part 9— |
| |
(a) | has not been presented by the debtor before the |
| |
| 10 |
(b) | has been so presented, but proceedings on the petition |
| |
have been finally disposed of before that date; or |
| |
(c) | has been so presented and proceedings in relation to the |
| |
petition remain before the court at that date, but the court |
| |
has referred the debtor under section 274A(2) for the |
| 15 |
purposes of making an application for a debt relief order. |
| |
4 | A creditor’s petition for the debtor’s bankruptcy under Part 9— |
| |
(a) | has not been presented against the debtor at any time |
| |
before the determination date; |
| |
(b) | has been so presented, but proceedings on the petition |
| 20 |
have been finally disposed of before that date; or |
| |
(c) | has been so presented and proceedings in relation to the |
| |
petition remain before the court at that date, but the person |
| |
who presented the petition has consented to the making of |
| |
an application for a debt relief order. |
| 25 |
5 | A debt relief order has not been made in relation to the debtor in |
| |
the period of six years ending with the determination date. |
| |
Limit on debtor’s overall indebtedness |
| |
6 (1) | The total amount of the debtor’s debts on the determination date, |
| |
other than unliquidated debts and excluded debts, does not |
| 30 |
exceed the prescribed amount. |
| |
(2) | For this purpose an unliquidated debt is a debt that is not for a |
| |
liquidated sum payable to a creditor either immediately or at some |
| |
| |
Limit on debtor’s monthly surplus income |
| 35 |
7 (1) | The debtor’s monthly surplus income (if any) on the |
| |
determination date does not exceed the prescribed amount. |
| |
(2) | For this purpose “monthly surplus income” is the amount by |
| |
which a person’s monthly income exceeds the amount necessary |
| |
for the reasonable domestic needs of himself and his family. |
| 40 |
| |
(a) | make provision as to how the debtor’s monthly surplus |
| |
income is to be determined; |
| |
|
| |
|
| |
|
(b) | provide that particular descriptions of income are to be |
| |
excluded for the purposes of this paragraph. |
| |
Limit on value of debtor’s property |
| |
8 (1) | The total value of the debtor’s property on the determination date |
| |
does not exceed the prescribed amount. |
| 5 |
| |
(a) | make provision as to how the value of a person’s property |
| |
| |
(b) | provide that particular descriptions of property are to be |
| |
excluded for the purposes of this paragraph. |
| 10 |
| |
| |
9 (1) | The debtor has not entered into a transaction with any person at |
| |
an undervalue during the period between— |
| |
(a) | the start of the period of two years ending with the |
| 15 |
| |
(b) | the determination date. |
| |
(2) | For this purpose a debtor enters into a transaction with a person at |
| |
| |
(a) | he makes a gift to that person or he otherwise enters into a |
| 20 |
transaction with that person on terms that provide for him |
| |
to receive no consideration; |
| |
(b) | he enters into a transaction with that person in |
| |
consideration of marriage or the formation of a civil |
| |
| 25 |
(c) | he enters into a transaction with that person for a |
| |
consideration the value of which, in money or money’s |
| |
worth, is significantly less than the value, in money or |
| |
money’s worth, of the consideration provided by the |
| |
| 30 |
10 (1) | The debtor has not given a preference to any person during the |
| |
| |
(a) | the start of the period of two years ending with the |
| |
| |
(b) | the determination date. |
| 35 |
(2) | For this purpose a debtor gives a preference to a person if— |
| |
(a) | that person is one of the debtor’s creditors to whom a |
| |
qualifying debt is owed or is a surety or guarantor for any |
| |
| |
(b) | the debtor does anything or suffers anything to be done |
| 40 |
which (in either case) has the effect of putting that person |
| |
into a position which, in the event that a debt relief order is |
| |
made in relation to the debtor, will be better than the |
| |
position he would have been in if that thing had not been |
| |
| 45 |
|
| |
|