general scheme of personal insolvency...

Department of Justice and Equality 24/1/2012

NOTE – This document is in draft format and as such is still subject to the legal advice of the

Office of the Attorney General.

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Draft General Scheme of Personal Insolvency Bill

Index of contents ______________________

Part 1

Preliminary and General

Head 1 - Short title and commencement Head 2 - Interpretation Head 3 - Regulations Head 4 - Laying of orders and regulations before Houses of the Oireachtas Head 5 - Expenses Head 6 – Repeals

Part 2

Insolvency Service Head 7 - Establishment of Insolvency Service Head 8 - Functions of Insolvency Service

Head 9 - Composition of Insolvency Service

Head 10 - Director

Head 11 - Staff of Insolvency Service Head 12 - Superannuation Head 13 - Strategic planning

Head 14 - Business planning Head 15 - Annual report by the Insolvency Service

Head 16 - Accounts and audit

Head 17 - Appearance before Committee of Dáil Éireann established to examine,

etc., appropriation accounts, etc

Head 18 - Appearance before other committees of Houses of Oireachtas

Head 19 - Power to charge and recover fees

Head 20 - Advances by Minister to Insolvency Service

Part 3 Debt Relief Certificates

Head 21 - Interpretation of Part 3 Head 22 - Debt relief certificates Head 23 – Conditions in regard to application for a debt relief certificate




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Head 24 – Debts excluded from a debt relief certificate Head 25 – Hire purchase or conditional payment agreements and debt relief certificates Head 26 – Application for debt relief certificate Head 27 - General Duty of approved intermediary to advise debtor prior to application for Debt Relief Certificate Head 28 - Duty of Insolvency Service to consider and determine application for a debt relief certificate Head 29 - Refusal of application for a debt relief certificate Head 30 - Presumptions applicable to the determination of an application Head 31 - Issue of Debt Relief Certificates Head 32 - Effect of debt relief certificate on court order Head 33 - Moratorium period in respect of qualifying debts Head 34 - The moratorium period Head 35 - Discharge from qualifying debts at the end of the moratorium period Head 36 - Providing assistance to Insolvency Service, etc. Head 37 – Creditor objection during the moratorium period Head 38 – Investigation of creditor objection during the moratorium period Head 39 - Power of Insolvency Service to revoke or amend a debt relief certificate Head 40 - Powers of court in relation to debt relief certificates Head 41 - Inquiry into debtor's dealings and property Head 42 - False representations and omissions Head 43 - Concealment or falsification of documents Head 44 - Fraudulent disposal of property Head 45 - Fraudulent dealing with property obtained on credit Head 46 - Obtaining credit or engaging in business by a debtor to whom a moratorium period applies Head 47- Prosecution of Offences Head 48 - Approved intermediaries Head 49 - Register of debt relief certificates, etc. Head 50 - Limit on debtor's monthly surplus income Head 51 - Limit on value of debtor's property Head 52 - Transactions at undervalue Head 53 - Preferences

Part 4 Debt Settlement Arrangements

Head 54 Interpretation of Part 4 Head 55 Debt Settlement Arrangement: General Conditions Head 56 Debt Settlement Arrangement: only one application permitted in

ten years Head 57 Debt Settlement Arrangement: repayment options Head 58 Application for Protective Certificate Head 59 Granting of request for protective certificate Head 60 Duty of Personal Insolvency Trustee following registration of

notice




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Head 61 General Duty of Personal Insolvency Trustee to Advise Debtor prior to initiating Debt Settlement Arrangement

Head 62 General Functions of Personal Insolvency Trustee prior to making of Debt Settlement Arrangement

Head 63 General Functions of Personal Insolvency Trustee after making of Debt Settlement Arrangement

Head 64 General Duties of Debtor to whom a Debt Settlement Arrangement applies

Head 65 Documents to be prepared for Debt Settlement Arrangement Head 66 Mandatory requirements concerning Debt Settlement

Arrangement Head 67 Preferential debts in Debt Settlement Arrangement Head 68 Secured creditors and Debt Settlement Arrangement Head 69 Creditors’ meeting required to approve Debt Settlement

Arrangement Head 70 Procedures for the conduct of creditors meetings Head 71 Debt Settlement Arrangement comes into effect after registration Head 72 Effect of registration of Debt Settlement Arrangement Head 73 Variation of Debt Settlement Arrangement Head 74 Termination of Debt Settlement Arrangement Head 75 Application for adjudication in bankruptcy on ending, termination

or failure of Debt Settlement Arrangement Head 76 Scope of functions of Court concerning Debt Settlement

Arrangements Head 77 Grounds of challenge by creditor to Debt Settlement Arrangement Head 78 Application to Court to have Debt Settlement Arrangement

terminated Head 79 Debt Settlement Arrangement deemed to have failed after 3 month

arrears default

PART 5 PERSONAL INSOLVENCY ARRANGEMENTS

Head 80 Interpretation of Part 5 Head 81 Purposes of Part 5 Head 82 Review of operation of Part 5 Head 83 Personal Insolvency Arrangement: General Conditions Head 84 Personal Insolvency Arrangement: only one permitted in lifetime Head 85 Eligibility Criteria for a Personal Insolvency Arrangement Head 86 General functions of Personal Insolvency Trustee up to application

for protective certificate Head 87 Application to Insolvency Service for protective certificate Head 88 Consideration by Insolvency Service of application for protective

certificate Head 89 Issue of Protective Certificate Head 90 Effect of issue of protective certificate Head 91 Duties of Personal Insolvency Trustee following issue of protective

certificate Head 92 Documents to be given to creditors and the Insolvency Service

when summoning a creditors’ meeting




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Head 93 Mandatory requirements concerning Personal Insolvency Arrangement

Head 94 Personal Insolvency Arrangement: repayment options Head 95 Preferential debts in Personal Insolvency Arrangement Head 96 Secured creditors and Personal Insolvency Arrangement Head 96A Protections for secured creditors in Personal Insolvency

Arrangement Head 97 Principal Private Residence in Personal Insolvency Arrangement Head 97A Valuation of Security Head 98 Creditors’ meeting required to approve Personal Insolvency

Arrangement Head 99 Procedures for the conduct of creditors meetings Head 100 When Personal Insolvency Arrangement comes into effect Head 101 Registration and effect of Personal Insolvency Arrangement Head 102 General Functions of personal insolvency trustee after the making

of Personal Insolvency Arrangement Head 103 General Duties of debtor to whom a Personal Insolvency

Arrangement applies Head 104 Variation of Personal Insolvency Arrangement Head 105 Grounds of challenge by creditor to coming into effect or variation

of Personal Insolvency Arrangement Head 106 Application to Circuit Court to have Personal Insolvency

Arrangement terminated Head 107 Personal Insolvency Arrangement deemed to have failed after 6

month arrears default Head 108 Application for adjudication in bankruptcy on ending, termination

or failure of Personal Insolvency Arrangement Head 109 Effect of premature termination of Personal Insolvency

Arrangement on debts Head 109A Successful completion of Personal Insolvency Arrangement Head 110 Scope of functions of Circuit Court concerning Personal

Insolvency Arrangements Head 111 Offences under Part 5 Head 112 Regulations, guidelines and codes of practice under Part 5 Head 113 Giving of Notices

PART 6

BANKRUPTCY

Amendment of Bankruptcy Act 1988 Head 114 -Amendment of section 3 of Bankruptcy Act 1988 Head 115 -Amendment of section 8(1) and (2) of Bankruptcy Act 1988 Head 116 - Amendment of section 11 of Bankruptcy Act 1988 Head 117 – Amendment of section 12 – Petitioning creditor’s costs Head 118 - Amendment of section 15 of the Bankruptcy Act 1988 Head 119 -Amendment of section 39(1) of Bankruptcy Act 1988 Head 120- Amendment of section 45(1) of Bankruptcy Act 1988 Head 121 -Amendment of section 57(1) of Bankruptcy Act 1988




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Head 122 -Amendment of section 58 of Bankruptcy Act 1988 Head 123 - Amendment of section 59(1) and 59(3) of Bankruptcy Act 1988 Head 124 - Amendment of section 72 of Bankruptcy Act 1988 Head 125 - Amendment of section 85 of Bankruptcy Act 1988 Head 126 - New Section 85A (Objection to automatic discharge from

bankruptcy) Head 127 - New Section 85B (Application to court for discharge from

bankruptcy) Head 128 - New Section 85C (Annulment of adjudication in bankruptcy) Head 129 – Amendment to section 87 – petition for protection in relation to arrangement under control of court

Part 7 Personal Insolvency Register

Head 130 - Personal Insolvency Register Head 131 Information held on the Personal Insolvency Register (i) Debt Relief Certificates

(ii) Debt Settlement Arrangements

(iii) Personal Insolvency Arrangements

Part 8

Miscellaneous Head 132 - Guidelines on Reasonable Expenditure and Essential Income for

Debtors Head 133 - Standard Financial Statement Head 134 – Personal Insolvency Trustee Head 135 - Application of laws in relation to netting agreements, etc.




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PART 1

PRELIMINARY AND GENERAL

Head 1 - Short title and commencement. Provide that: (1) This Act may be cited as the Personal Insolvency Act 2012. (2) This Act shall come into operation on such day or days as, by order or orders made by the Minister under this section, may be fixed therefor, either generally or with reference to any particular purpose or provision, and different days may be so fixed for different purposes and different provisions.




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Head 2 - Interpretation. Provide that: “debt” means a debt incurred by a natural person through his or her personal consumption or in the course of his or her business, trade or profession or otherwise that is for a liquidated sum or sums payable either immediately or at some certain future time; “Debt Relief Certificate” means an arrangement under Part 3 of this Act; “Debt Settlement Arrangement” means an arrangement under Part 4 of this Act; “income payments order” means an order made by the court pursuant to sections 85(5) or 85(B)(4) of the Bankruptcy Act 1988 requiring a discharged bankrupt to make payments from his or her income to the Official Assignee or any other trustee for the benefit of his or her creditors; “Minister” means the Minister for Justice and Equality; “Personal Insolvency Arrangement” means an arrangement under Part 5 of this Act; “prescribed” means prescribed in regulations; “secured creditor” in relation to a debt, means, any creditor holding security over any part of the debtor’s estate for a debt owed by the debtor to that creditor; “security” in relation to a debt, means any means of securing payment of the debt and includes:-

(a) a mortgage, judgment mortgage, charge, lien, pledge, hypothecation or other security interest or encumbrance or collateral in or over any property (whether real or personal and including choses-in-action), (b) an assignment by way of security, and (c) an undertaking or agreement by any person (including a solicitor) to give or create a security interest in property;

“regulations” means, [unless otherwise specified] regulations made by the Minister under this Act; “unsecured creditor” in relation to a debt, means any creditor that is not a secured creditor;




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Head 3 – Regulations and orders. Provide that a regulation under this Act may contain such incidental, supplementary and consequential provisions as the Minister [and the Insolvency Service] as the case may be, consider necessary or expedient. Head 4 - Laying of orders and regulations before Houses of the Oireachtas.

Provide that-

Every order and regulation made under this Act by the Minister shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly but without prejudice to the validity of anything previously done there under.




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Head 5 - Expenses. Provide that: The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

Head 6 Repeals.

Provide that

The enactments specified in Schedule [ ] are repealed to the extent specified in column [ ] of that schedule.




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PART 2

INSOLVENCY SERVICE

Head 7 - Establishment of Insolvency Service. Provide that (1) On the establishment day there shall stand established a body to be known, in the English language, as the Insolvency Service or, in the Irish language, as An Seirbhís Dócmhainneacht, to perform the functions conferred on it by this Act.

(2) The Insolvency Service shall be a body corporate with perpetual succession and with power—

(a) to sue and be sued in its corporate name,

(b) with the consent of the Minister, to acquire, hold and dispose of land or an interest in or rights over or in respect of land, and

(c) to acquire, hold and dispose of any other property.

(3) The Insolvency Service shall—

(a) subject to this Act, be independent in the exercise of its functions under this Act, and

(b) have all powers that are necessary [or expedient] for [or incidental to] the performance of those functions.




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Head 8 - Functions of Insolvency Service.

(1) The principal functions of the Insolvency Service shall be to –

• oversee the non-judicial personal insolvency system as provided for in this Act • determine applications for the grant of Debt Relief Certificates as provided in

Part 3 of this Act • register details of the Debt Relief Certificates granted under Part 3 of this Act. • process notices of intention to seek a Debt Settlement Arrangement as

provided in Part 4 of this Act • process applications for a protective certificate in relation to a Debt Settlement

Arrangement as provided in Part 4 of this Act • register the details of Debt Settlement Arrangements as provided in Part 4 of

this Act • process applications for a protective certificate in relation to a Personal

Insolvency Arrangements as provided in Part 5 of this Act • register the details of Personal Insolvency Arrangements as provided in Part 5

of this Act • provide and maintain the Personal Insolvency Register as provided in Part 6 of

this Act • provide information to the public on the provisions of this Act • to advise the Minister on any matter relating to its functions • to carry out any other duties and exercise any other powers assigned to it

under this Act.

(2) The Insolvency Service may disseminate, to such extent and in such manner as it considers appropriate, information in relation to the services provided by the Insolvency Service.

(3) The Insolvency Service may, subject to this Act, do anything which it considers necessary or expedient to enable it to perform its functions.

(4) The Minister may by order confer on the Insolvency Service such additional functions connected with the functions for the time being of the Insolvency Service as he or she considers appropriate.

(5) An order under subhead (4)—

(a) shall be made with the consent of the Minister for Public Expenditure and Reform and after consultation with the Insolvency Service,

(b) may be subject to any conditions specified in the order, and

(c) may contain such incidental, supplemental or consequential provisions as may, in the opinion of the Minister, be necessary to give full effect to it.

(6) The Minister may by order amend or revoke an order under this section, including an order under this subsection.




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Head 9 – Composition of Insolvency Service. Provide that The Insolvency Service shall consist of –

(a) the Director of the Insolvency Service appointed under this Part, and (b) any members of staff of the Insolvency Service appointed under this Part.




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Head 10 Director

Provide that:

(1) (a) There shall be a Director of the Insolvency Service who shall be known, and is referred to in this Act, as the “Director”.

(b) The Director shall hold office for such period, not exceeding 5 years from the date of his or her appointment under this section, as may be determined by the Minister.

(c) A person who has held office as Director shall be eligible for re-appointment but shall not hold office for periods the aggregate of which exceeds 10 years.

(2) The Director shall—

(a) be appointed by the Minister on the recommendation of the Director of the Public Appointments Service after a competition for that purpose under section 47 of the Public Service Management (Recruitment and Appointments) Act 2004 has been held on behalf of the Minister, and

(b) have the appropriate experience, qualifications, training and expertise for the appointment.

(3) The Director shall—

(a) implement the policies and decisions of the Insolvency Service,

(b) manage and control generally the Insolvency Service’s staff, administration and business,

(c) be responsible to the Minister for the performance of his or her functions, and

(d) perform such other functions (if any) as may be required by the Minister or as may be authorised under this Act.

(4) The Director may be removed or suspended from office by the Minister for stated reasons.

(5) The Director shall provide the Minister with such information, including financial information, in respect of the performance of the Director’s functions as the Minister may require.

(6) The Director shall not hold any other office or position in respect of which remuneration is payable, or carry on any business, trade or profession without the approval of the Minister.

(7) Such of the functions of the Director as the Director may specify may, with the consent of the Minister, be performed by such member or members of the staff of the Insolvency Service as the Director may authorise for that purpose, and that member or those members of staff shall be accountable to the Director for the performance of the functions so delegated.




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(8) The Director shall be accountable to the Minister for the performance of functions delegated by him or her in accordance with subsection (7).

(9) The Director may, with the consent of the Minister in writing, revoke a delegation made in accordance with this section.

(10) The functions referred to in subsection (7) do not include a function delegated by the Minister to the Director subject to a condition that the function shall not be delegated by the Director to anyone else.

(11) If the Director —

(a) dies, resigns, becomes disqualified for or is removed from office, or

(b) is for any reason temporarily unable to continue to perform his or her functions,

the Minister may, designate such member or members of the staff of the Insolvency Service as he considers appropriate to perform the functions of the Director until—

(i) in the circumstances mentioned in paragraph (a), an appointment is made in accordance with subsection (2),

(ii) in the circumstances mentioned in paragraph (b), the Director is able to resume the performance of his or her functions, or

(iii) the Minister decides to revoke or alter a designation made under this subsection.




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Head 11 - Staff of Insolvency Service. Provide that- (1) Members of the staff of the Insolvency Service shall be civil servants within the meaning of the Civil Service Regulations Acts 1956 to 2005.

(2) Notwithstanding subhead (1), if the Insolvency Service considers that, in the performance of its functions under this Scheme, it requires the advice, guidance or assistance of experts in respect of any matter arising in connection with those functions, it may, upon such terms and conditions as it may determine, with the consent of the Minister and the Minister for Public Expenditure and Reform, appoint such number of persons [or bodies] having expertise in relation to those functions as it may determine, with the like consent, to provide it with such advice, guidance or assistance.




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Head 12 – Superannuation

Provide that -

(1) The Insolvency Service shall, as soon as may be after the establishment day, with the approval of the Minister and the consent of the Minister for Public Expenditure and Reform, make a scheme or schemes for the granting of superannuation benefits to or in respect of the Director and such of its staff as it thinks fit.

(2) A scheme under this section shall fix the time and conditions of retirement of all persons to or in respect of whom superannuation benefits are payable under the scheme or schemes and different times and conditions may be fixed in respect of different classes of persons.

(3) The Insolvency Service may, with the approval of the Minister and the consent of the Minister for Public Expenditure and Reform, make a scheme amending a scheme under this section including a scheme under this subsection.

(4) A scheme under this section shall, if approved by the Minister with the consent of the Minister for Public Expenditure and Reform, be carried out by the Insolvency Service in accordance with its terms.

(5) A scheme under this section shall include a provision for appeals from a decision relating to a superannuation benefit under the scheme.

(6) If any dispute arises as to the claim of any person to, or the amount of, any superannuation benefit payable pursuant to a scheme or schemes under this section, such dispute shall be submitted to the Minister who shall refer it to the Minister for Public Expenditure and Reform, whose decision shall be final.

(7) No superannuation benefits shall be granted by the Insolvency Service to or in respect of a person on ceasing to be the Director or a member of the staff of the Insolvency Service otherwise than—

(a) in accordance with a scheme or schemes under this section, or

(b) with the approval of the Minister and the consent of the Minister for Public Expenditure and Reform.

(8) A scheme under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the scheme is passed by either such House within the next 21 days on which that House has sat after the scheme is laid before it, the scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(9) Subsection (8) shall, with all necessary modifications, apply to an amendment to a scheme under this section as it applies to a scheme under this section.

(10) In this section—




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“amending”, in relation to a scheme under this section, includes revoking the scheme;

“superannuation benefit” means any pension, gratuity or other allowance payable to or in respect of a person ceasing to be the Director or a member of the staff of the Insolvency Service.




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Head 13 Strategic planning

Provide that

(1) The Insolvency Service shall, as soon as practicable after the establishment day, and thereafter within 6 months before each third anniversary of the establishment day, prepare and submit to the Minister, for approval by the Minister with or without amendment, a strategic plan for the Insolvency Service for the ensuing 3 year period. (2) A strategic plan shall—

(a) comply with any directions issued from time to time by the Minister in respect of the form and manner of the plan’s preparation,

(b) set out the key objectives, outputs and related strategies of the Insolvency

Service, including the use of resources, and (c) have regard to the need to ensure the most beneficial, effective and

efficient use of the Insolvency Service’s resources.

(3) The Minister shall, as soon as practicable after the strategic plan has been approved, cause a copy of the strategic plan to be laid before each House of the Oireachtas




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Head 14 Business planning. Provide that (1) The Minister may, at any time before the beginning of a financial year, request the Insolvency Service to submit to the Minister a business plan for the Insolvency Service or for that financial year, and the [Director of the] Insolvency Service shall comply with such a request. (2) A business plan shall—

(a) be prepared in the form and manner and in accordance with any directions given by the Minister,

(b) indicate the activities of the Insolvency Service for the period to which the business plan relates,

(c) contain any other information specified by the Minister, and (d) accord with policies and objectives of the Minister and the Government.

(3) In preparing the business plan, the [Director of the] Insolvency Service shall have regard to the Strategic Plan in operation at that time approved under Head 13. (4) The Insolvency Service shall give effect to the business plan unless the Minister, within 30 days of the submission of the plan, directs the Insolvency Service in writing to either amend the plan or not to give effect to it and the Insolvency Service shall comply with such a direction.




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Head 15 Annual report by the Insolvency Service.

Provide that

(1) Not later than 4 months after the end of each financial year, the [Director of the] Insolvency Service shall make a written report to the Minister on the performance of the functions of the Insolvency Service during that year.

(2) The annual report submitted under subhead (1) shall be in such form and regarding such matters as the [Director of the] Insolvency Service thinks fit or the Minister may direct.

(3) The [Director of the] Insolvency Service —

(a) may make any other reports that he or she considers appropriate for drawing to the Minister’s attention matters that have come to his or her notice and that, in his or her opinion, should, because of their gravity or other exceptional circumstances, be the subject of a special report to the Minister, and

(b) shall make a report on any other matter if so requested by the Minister.

(4) Not later than 2 months after receiving a report under this section, the Minister shall cause a copy of the report to be laid before each House of the Oireachtas.

(5) For the purposes of subsection (1), the period between the date of the establishment of the Insolvency Service and the following 31 December shall be deemed to be a preceding year.




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Head 16 Accounts and audit.

Provide that

(1) The Insolvency Service shall,

(a) submit estimates of income and expenditure to the Minister in such form, in respect of such periods and at such times as may be specified by the Minister, and

(b) provide to the Minister any information which the Minister may require regarding those estimates and also regarding the proposals and plans of the Insolvency Service in respect of a period specified by the Minister,

and the Minister shall, as soon as practicable, cause copies of the information so submitted by the Insolvency Service to be laid before each House of the Oireachtas.

(2) The [Director of the] Insolvency Service shall keep in such form and in respect of such accounting periods as may be approved of by the Minister, with the consent of the Minister for Public Expenditure and Reform, all proper and usual accounts of moneys received and spent by the Insolvency Service, including an income and expenditure account and a balance sheet.

(3) (a) The accounts of the Insolvency Service shall be approved by it as soon as is practicable (but not later than 3 months after the end of the accounting period to which they relate) and submitted by it to the Comptroller and Auditor General for audit.

(b) A copy of the accounts and the report of the Comptroller and Auditor General on them shall be presented to the members of the Insolvency Service and the Minister as soon as is practicable, and the Minister shall cause a copy of the accounts and report to be laid before each House of the Oireachtas.

(4) (a) The Insolvency Service, the Director and any relevant member of the staff

shall, whenever so required by the Minister, permit any person appointed by the Minister to examine the accounts of the Insolvency Service in respect of any financial year or other period and shall facilitate any such examination, and the Insolvency Service shall pay to the Minister such fee for the examination as may be fixed by the Minister.

(b) In this subsection, “relevant member of the staff” means a member of the staff of the Insolvency Service to whom duties relating to those accounts have been duly assigned.




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Head 17 - Appearance before Committee of Dáil Éireann established to examine, etc., appropriation accounts, etc.

Provide that

(1) The Director of the Insolvency Service shall, whenever required in writing by a Committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General, give evidence to that Committee on—

(a) the regularity and propriety of the transactions recorded, or required to be recorded in any account kept under Head 13(2) of this Scheme, in any book or other record of account subject to audit by the Comptroller and Auditor General that the Insolvency Service is required by this Scheme to prepare,

(b) the economy and efficiency of the Insolvency Service in the use of resources,

(c) the systems, procedures and practices employed by the Insolvency Service for the purpose of evaluating the effectiveness of its operations, and

(d) any matter affecting the Insolvency Service referred to in a special report of the Comptroller and Auditor General under section 11(2) of the Comptroller and Auditor General (Amendment) Act 1993, or any other report of the Comptroller and Auditor General (in so far as the report relates to a matter specified in any of paragraphs (a) to (c)) that is laid before Dáil Éireann

(2) In giving evidence to the Committee under this section, the Director of the Insolvency Service shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such policy.




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Head 18 - Appearance before other committees of Houses of Oireachtas.

Provide that

(1) The Director of the of the Insolvency Service shall attend a meeting of an Oireachtas Committee whenever asked to do so by the Committee and shall provide the Committee with such information (including documents) as it specifies and as is in the possession of, or is available to, the Director .

(2) The Director is not required to give an account before an Oireachtas Committee of any matter—

(a) relating solely to an individual application for adjudication, or

(b) that is, or is likely to be, the subject of proceedings before a court or tribunal in the State.

(3) The Director shall, if of the opinion that subhead (2) applies to a matter about which he or she is requested to give an account before an Oireachtas Committee, inform the Committee of that opinion and the reasons for the opinion.

(4) The information required under subhead (3) to be given to the Oireachtas Committee shall be given in writing unless it is given when the Director is before the Committee.

(5) If, on being informed of the Director's opinion about a matter, the Oireachtas Committee decides not to withdraw its request, the High Court may, on application under subhead (6), determine whether subhead (2) applies to the matter.

(6) An application for a determination under subhead (5) may be made in a summary manner to the High Court by—

(a) the Director not later than 21 days after being informed by the Oireachtas Committee of its decision not to withdraw its request, or

(b) the chairperson of the Oireachtas Committee acting on its behalf.

(7) Pending the determination of an application under subhead (6), the Director shall not attend before the Oireachtas Committee to give an account of the matter to which the application relates.

(8) If the High Court determines that subhead (2) applies to the matter, the Oireachtas Committee shall withdraw its request relating to the matter, but if the High Court determines that subhead (2) does not apply, the Director shall attend before the Committee to give an account of the matter.

(9) In this section, “Oireachtas Committee” means—

(a) a committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas (other than the Committee referred to in section 16 (1), the Committee on Members’ Interests of Dáil Éireann or the Committee on Members’ Interests of Seanad Éireann), or

(b) a subcommittee of a committee as defined in paragraph (a).




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Head 19 - Power to charge and recover fees.

Provide that

(1) Subject to subsection (5), the Insolvency Service, with the consent of the Minister, may, and if directed by the Minister to do so and in accordance with the terms of the direction, shall, prescribe by regulations the fees to be paid to it and when they fall due in respect of -

(a) the performance of functions,

(b) the provision of services, and

(c ) the carrying on of activities,

by the Insolvency Service under this Act.

(2) Without prejudice to the generality of subsection (1), the Insolvency Service’s power under that subsection to prescribe fees includes the power to provide for exemptions from the payment of fees, or waiving, remitting or refunding fees (in whole or in part), in different circumstances or classes of circumstances or in different cases or classes of cases.

(3) Fees received under this Act shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Public Expenditure and Reform directs.

(4) The Insolvency Service may recover as a simple contract debt in any court of competent jurisdiction, from a person by whom the fee is payable, any amount due and owing to the Insolvency Service in respect of a fee charged under this section.

(5) In making regulations pursuant to this Head the Insolvency Service may have regard to _

(a) the expenses incurred by the Insolvency Service, or

(b) the expenses which it is anticipated will be incurred by the Insolvency Service,

in performing its functions under this Act, so that so much of those expenses as the Insolvency Service considers appropriate are recovered from fees to be charged pursuant to such regulations.




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Head 20 Advances by Minister to Insolvency Service

Provide that

The Minister shall advance to the Insolvency Service out of monies provided by the Oireachtas such amount or amounts as the Minister may, with the consent of the Minister for Public Expenditure and Reform, determine for the purposes of expenditure by the Insolvency Service in the performance of its functions.




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PART 3

DEBT RELIEF CERTIFICATES

Head 21 - Interpretation of Part 3 Provide that: (1) In this Part— “the application date”, in relation to a debt relief certificate or an application for a debt relief certificate, means the date on which the application for the certificate is made to the Insolvency Service; “approved intermediary” has the meaning given in Head 45; “debt relief certificate” means a certificate issued by the Insolvency Service under this Part; “debtor” means—

(a) in relation to an application for a debt relief certificate, the applicant; and (b) in relation to a debt relief certificate, the person in relation to whom the certificate is issued;

“the determination date”, in relation to a debt relief certificate or an application for a debt relief certificate, means the date on which the application for the certificate is determined by the Insolvency Service; “the effective date” has the meaning given in Head 28; “excluded debt” is to be construed in accordance with Head 22; “moratorium” and “moratorium period” are to be construed in accordance with Heads 30 and 31; “qualifying debt”, in relation to a debtor, has the meaning given in Head 22 “the register” means the register maintained under Head 47; “specified qualifying debt” has the meaning given in Head 30 (2) In this Part references to a creditor specified in a debt relief certificate as the person to whom a qualifying debt is owed by the debtor include 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 certificate.




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Head 22 - Debt relief certificates Provide that: (1) Any person who is unable to pay his or her debts in full as they fall due and fulfils the eligibility criteria set out in this Part may apply for a certificate under this Part (“a debt relief certificate”) to be made in respect of his or her qualifying debts. (2) In this Part “qualifying debt” means, subject to subsection (3), a debt which—

(a) is for a liquidated sum payable either immediately or at some certain future time; and (b) is not an excluded debt.

(3) Without prejudice to the generality of subsection (2), in this Part “qualifying debts” may include the following: (i) credit card debt, (ii) an overdraft, an unsecured loan from a bank or other entity regulated by the Central Bank of Ireland for the conduct of business in Ireland (iii) rent, utilities, telephone, (iv) benefit overpayments and social fund loans (v) any liquidated debts incurred by the debtor as surety for another person, (e.g. a guarantee given by the debtor that has been called so that the amounts guaranteed are due and payable by the debtor). [(vi) hire purchase or conditional sale agreements]. (4) A debt is not a qualifying debt to the extent that it is secured.




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Head 23 – Conditions in regard to application for a debt relief certificate Provide that: (1) The following general conditions shall apply in regard to an application for a Debt Relief Certificate,

(i) the debtor has qualifying debts amounting to €20,000 or less. (ii) the debtor has available net disposable income of €60 or less a month after payment of normal household expenses and payments in respect of excluded debts. (iii) the debtor has assets and savings worth €400 or less. (iv) the debtor is resident in the State on the application date or at any time in the 3 years immediately preceding that date was ordinarily resident in the State.

(2) For the purposes of subsection (1)(i), qualifying debts shall have the meaning in section 22(2) and (3). (3) For the purposes of subsection (1)(ii), net disposable income shall be calculated taking in to account the following:

(i) salary or wages (ii) welfare benefits, such as Jobseeker's Allowance, etc (iii) income from a pension (iv) contributions from other household members (v) rental income.

(4) For the purposes of subsection (1)(iii),

(a) assets shall include the following:

(i) savings (ii) vehicles (in addition to the provision at (b)(iii) (iii) shares (iv) antiques and property (real and personal).

(b) assets shall not include the following:

(i) household equipment such as bedding, clothing and furniture (ii) tools, books and other items of equipment used by the debtor in

his/her job or business (iii) a car which has been specially adapted because the debtor has a

physical disability and which s/he needs to carry out his/her everyday activities

(iv) One motor vehicle worth €1,200 or less unless it has been specially adapted because the debtor has a physical disability

(v) where the debtor is retired and is receiving payments from a pension fund, the payments will be regarded as income rather than an asset.




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(5) A debtor may not apply for a debt relief certificate where the following conditions apply: (i) he or she has applied for bankruptcy but the petition has not yet been adjudicated, (ii) he or she has been adjudicated bankrupt and the adjudication has not been annulled or discharged, (iii) he or she has been applied for a protective certificate in connection with or has been approved for and is participating in a Debt Settlement Arrangement, (iv) he or she has been approved for a protective certificate in connection with a Personal Insolvency Arrangement or is participating in a Personal Insolvency Arrangement, (v) he or she has been granted a debt relief certificate in the last 6 years. (vii) a creditor has petitioned to make the debtor bankrupt but the hearing has not yet taken place, [(viii) he or she is subject to any form of legally binding arrangement or composition other than a Debt Settlement Arrangement or a Personal Insolvency Arrangement with one or more creditors.] (6) The provisions of subsection 5(i) shall not apply where—

(a) has not been presented by the debtor before the determination date;

(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 High Court at that date, but the Court has referred the debtor for the purposes of making an application for a debt relief certificate, Debt Settlement Arrangement or Personal Insolvency Arrangement.

(7) The provisions of subsection 5(vii) shall not apply where a creditor's petition for the debtor's bankruptcy--

(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 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 certificate.




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Head 24 – Debts excluded from a debt relief certificate Provide that: (1) In this Part “excluded debt” means a debt specified under subsection (2) or a debt of any description that may be prescribed for the purposes of this section. (2) The following shall be excluded debts for the purposes of subsection (1):

(i) fines imposed by a court, (ii) confiscation orders made by a court, (iii) child support payments, (iv) spousal maintenance payments, and (v) periodic payment orders.

(3) The debts mentioned at subsection (2) shall be paid separately. (4) Creditors in respect of excluded debts may take action against the debtor, even if the debtor may have a debt relief certificate.




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Head 25 – Hire purchase or conditional payments agreements and debt relief certificates Provide that: (1) Where the debtor has a hire purchase or conditional agreement they shall return the goods bought with these loans, unless someone else can pay the instalments on their behalf. (2) The debtor shall not be permitted to carry on paying for the goods once they have been granted a debt relief certificate.




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Head 26 - Application for debt relief certificate Provide that (1) An application for a debt relief certificate shall be made to the Insolvency Service through an approved intermediary. (2) The approved intermediary shall

(i) require the completion of a Standard Financial Statement by the debtor; (ii) verify that the application meets the conditions for a debt relief certificate; (iii) confirm that the approved fee has been received by them; (iv) where the application meets the conditions set out in this Part, transmit the application for the debt relief certificate to the Insolvency Service.

(3) The application shall include—

(a) a list of the debts to which the debtor is subject at the date of the application, specifying the amount of each debt (including any interest, penalty or other sum that has become payable in relation to that debt on or before that date) and the creditor to whom it is owed; (b) details of any security held in respect of any of those debts; and (c) such other information about the debtor's affairs (including his creditors, debts and liabilities and his income and assets) as may be prescribed.

(4) The Minister may make regulations which make further provision as to—

(a) the form of an application for a debt relief certificate; (b) the manner in which an application is to be made; and (c) information and documents to be supplied in support of an application.

(d) the approved fee for application. (5) For the purposes of this Part an application is not to be regarded as having been made until—

(a) the application has been submitted to the Insolvency Service; and (b) any fee required in connection with the application has been paid to such person as the certificate may specify.

(6) For the purposes of subhead (5) and unless otherwise specified by the Minister in regulations made under subhead (4), the application fee shall be €90.




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Head 27 - General Duty of approved intermediary to advise debtor prior to application for Debt Relief Certificate Provide that: An approved intermediary shall, prior to a debtor applying for Debt Relief Certificate, advise the debtor as to — (a) the general effect of initiating and of entering into a Debt Relief Certificate process, and (b) any alternative option or options available to the debtor, including a Debt Settlement Arrangement, Personal Insolvency Arrangement or bankruptcy, and the general effect of any such option or options.




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Head 28 - Duty of Insolvency Service to consider and determine application for a debt relief certificate Provide that (1) The Insolvency Service shall determine the application and — (a) grant the application in relation to the specified debts the Insolvency Service is satisfied were qualifying debts of the debtor at the application date, or (b) refuse the application. (2) The Insolvency Service may delay consideration of the application until it has received responses to any queries raised with the debtor, any creditor or any other relevant person in relation to anything connected with the application.




35

Head 29 - Refusal of application for a debt relief certificate Provide that (1) The Insolvency Service shall refuse the application for a debt relief certificate if it is not satisfied that—

(a) the debtor is a person who is unable to pay his or her debts in full as they fall due; (b) at least one of the specified debts was a qualifying debt of the debtor at the application date; and (c) each of the conditions set out in Head 23 is met.

(2) The Insolvency Service may refuse the application if it considers that—

(a) any queries raised with the debtor have not been answered to the satisfaction of the Insolvency Service within such time as it may specify when they are raised; (b) the debtor has made any false representation or omission in making the application or on supplying any information or documents in support of it.

(3) If the Insolvency Service refuses an application it shall give reasons for the refusal to the debtor in the prescribed manner. (4) In this section “specified debt” means a debt specified in the application.




36

Head 30 - Presumptions applicable to the determination of an application Provide that: (1) The following presumptions shall apply to the determination of an application for a debt relief certificate. (2) The Insolvency Service shall presume that the debtor is a person who is unable to pay his or her debts in full as they fall due at the determination date if—

(a) that appears to the Insolvency Service to be the case at the application date from the information supplied in the application and it has no reason to believe that the information supplied is incomplete or inaccurate; and (b) it has no reason to believe that, by virtue of a change in the debtor's financial circumstances since the application date, the debtor may be able to pay his or her debts.

(3) The Insolvency Service shall presume that a specified debt (of the amount specified in the application and owed to the creditor so specified) is a qualifying debt at the application date if—

(a) that appears to it to be the case from the information supplied in the application; and (b) it has no reason to believe that the information supplied is incomplete or inaccurate.

(4) The Insolvency Service shall presume that the conditions specified in Head 23 are met if—

(a) that appears to it to be the case from the information supplied in the application as at the application date or subsequent to that date; (b) any prescribed verification checks relating to the condition have been made; and (c) it has no reason to believe that the information supplied is incomplete or inaccurate. (d) it has no reason to believe that, by virtue of a change in circumstances since the application date, the condition may no longer be met.

(5) References in this section to information supplied in the application include information supplied to the Insolvency Service in support of the application. (6) In this section “specified debt” means a debt specified in the application.




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Head 31 - Issue of Debt Relief Certificates Provide that (1) Where the Insolvency Service issues a debt relief certificate under section 28 the certificate shall be made in the prescribed form. (3) The certificate shall include a list of the debts which the Insolvency Service is satisfied were qualifying debts of the debtor at the application date, specifying the amount of the debt at that time and the creditor to whom it was then owed. (4) The Insolvency Service shall—

(a) give a copy of the certificate to the debtor; and (b) make an entry for the certificate in the register containing the prescribed information about the certificate or the debtor.

(5) The Minister may make regulations which may make provision as to other steps to be taken by the Insolvency Service or the debtor on the making of the certificate. (6) Those regulations shall include, in particular, steps notifying each creditor to whom a qualifying debt specified in the certificate is owed of—

(a) the making of the certificate and its effect, (b) the grounds on which a creditor may object under Head 34, and (c) any other prescribed information.

(7) In this Part the date on which an entry relating to the making of a debt relief certificate is first made in the register is referred to as “the effective date”.




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Head 32 - Effect of debt relief certificate on court order

Provide that Where a debt relief certificate is issued under this Act it shall have no effect on the enforcement of any order of a court that is in force for the payment of money.




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Head 33 - Moratorium period in respect of qualifying debts Provide that: (1) A moratorium period shall commence on the effective date for a debt relief certificate in relation to each qualifying debt specified in the certificate (“a specified qualifying debt”). (2) During the moratorium period, a creditor to whom a specified qualifying debt is owed—

(a) has no remedy in respect of the debt, and (b) may not—

(i) commence a creditor's petition in respect of the debt, or (ii) otherwise commence any action or other legal proceedings against the debtor for the debt,

except with the permission of the Court and on such terms as the court may impose.

(3) If on the effective date a creditor to whom a specified qualifying debt is owed has any such petition, action or other proceeding as mentioned in paragraph (2)(b) pending in any court, that court may—

(a) stay the proceedings on the petition, action or other proceedings (as the case may be), or (b) allow them to continue on such terms as that court thinks fit.

(4) In subsection (2)(a) and (b) references to the debt include a reference to any interest, penalty or other sum that becomes payable in relation to that debt after the application date. (5) Nothing in this section affects the right of a secured creditor of the debtor to enforce or otherwise deal with his or her security.




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Head 34 - The moratorium period Provide that: (1) The moratorium period relating to the qualifying debts specified in a debt relief certificate continues for the period of one year beginning with the effective date for the certificate, unless—

(a) the moratorium terminates early; or (b) the moratorium period is extended by the Insolvency Service under this section or by the court under Head 39.

(2) The Insolvency Service may only extend the moratorium period for the purpose of—

(a) carrying out or completing an investigation under Head 37. (b) taking any action it considers necessary (whether as a result of an investigation or otherwise) in relation to the certificate; or (c) in a case where it has decided to revoke the certificate, providing the debtor with the opportunity to make arrangements for making payments towards his or her debts.

(3) The Insolvency Service may not extend the moratorium period for the purpose mentioned in paragraph (2)(a) without the permission of the court. (4) The Insolvency Service may not extend the moratorium period beyond the end of the period of 3 months beginning after the end of the initial period of one year mentioned in subsection (1). (5) The moratorium period may be extended more than once, but any extension (whether by the Insolvency Service or by the court) must be made before the moratorium would otherwise end. (6) References in this section to a moratorium terminating early are to its terminating before the end of what would otherwise be the moratorium period, whether on the revocation of the certificate or by virtue of any other statutory provision.




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Head 35 - Discharge from qualifying debts at the end of the moratorium period Provide that: (1) Subject to the provisions of this section, at the end of the moratorium period applicable to a debt relief certificate, the debtor is discharged from all the qualifying debts specified in the certificate (including all interest, penalties and other sums which may have become payable in relation to those debts since the application date). (2) Subsection (1) does not apply if the moratorium period terminates early. (3) Subsection (1) does not apply in relation to any qualifying debt which the debtor incurred in respect of any fraud or fraudulent breach of trust to which the debtor was a party. (4) The discharge of the debtor under subsection (1) does not release any other person from—

(a) any liability (whether as partner or co-trustee of the debtor or otherwise) from which the debtor is released by the discharge; or (b) any liability as surety for the debtor or as a person in the nature of such a surety.

(5) If the debt relief certificate is revoked by the court under Head 39 after the end of the moratorium period, the qualifying debts specified in the certificate shall (so far as practicable) be treated as though section (1) had never applied to them.




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Head 36 - Providing assistance to Insolvency Service, etc. Provide that: (1) The duties in this section apply to a debtor at any time after the making of an application by him or her for a debt relief certificate. (2) The debtor shall—

(a) give to the Insolvency Service such information as to his or her affairs, (b) attend on the Insolvency Service at such times, and (c) do all such other things, as the Insolvency Service may reasonably require for the purpose of carrying out its functions in relation to the application or, as the case may be, the debt relief certificate made as a result of the application.

(3) The debtor shall notify the Insolvency Service as soon as reasonably practicable if he or she becomes aware of—

(a) any error in, or omission from, the information supplied to the Insolvency Service in, or in support of, the application; (b) any change in his or her circumstances between the application date and the determination date that would affect (or would have affected) the determination of the application.

(4) The duties under subsections (2) and (3) apply after (as well as before) the determination of the application, for as long as the Insolvency Service is able to exercise functions of the kind mentioned in section (2). (5) If a debt relief certificate is made as a result of the application, the debtor must notify the Insolvency Service as soon as reasonably practicable if—

(a) there is an increase in his or her income during the moratorium period applicable to the certificate; (b) he or she acquires any property or any property is devolved upon him or her during that period; (c) he or she becomes aware of any error in or omission from any information supplied by him to the Insolvency Service after the determination date.

(6) A notification under subsections (3) or (5) must give the prescribed particulars (if any) of the matter being notified.




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Head 37 – Creditor objection during the moratorium period Provide that: (1) Any person specified in a debt relief certificate as a creditor to whom a specified qualifying debt is owed may object to—

(a) the issuing of the certificate ; (b) the inclusion of the debt in the list of the debtor's qualifying debts; or (c) the details of the debt specified in the certificate.

(2) An objection under subsection (1) must be—

(a) made during the moratorium period relating to the certificate and within the prescribed period for objections; (b) made to the Insolvency Service in the prescribed manner; (c) based on a prescribed ground; (d) supported by any information and documents as may be prescribed; and the prescribed period mentioned in sub-paragraph (a) must not be less than 28 days after the creditor in question has been notified of the making of the certificate.

(3) The Insolvency Service shall consider every objection made to it under this section.




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Head 38 – Investigation of creditor objection during the moratorium period Provide that: (1) The Insolvency Service may—

(a) as part of its consideration of an objection under section 37, or (b) on its own initiative, carry out an investigation of any matter that appears to the Insolvency Service to be relevant to the making of any decision mentioned in subsection (2) in relation to a debt relief certificate or the debtor.

(2) The decisions to which an investigation may be directed are—

(a) whether the certificate should be revoked or amended under section 39; (b) whether an application should be made to the court under section 40; or (c) whether any other steps should be taken in relation to the debtor.

(3) The power to carry out an investigation under this section is exercisable after (as well as during) the moratorium relating to the certificate. (4) The Insolvency Service may require any relevant person to give it such information and assistance as it may reasonably require in connection with an investigation under this section. (5) Subject to anything prescribed in the regulations as to the procedure to be followed in carrying out an investigation under this section, an investigation may be carried out by the Insolvency Service in such manner as it thinks fit. [(6) A creditor may appeal to the court against a decision of the Insolvency Service made under this section on the following grounds — (a) the procedural requirements specified in this Act were not followed, (b) a material inaccuracy or omission exists in the debtor’s application form which causes a material detriment to the creditor, (c) the debtor did not satisfy the eligibility requirements to enter the Debt Relief Order process when he or she initiated the process, (d) the arrangement unfairly prejudices the interests of a creditor, or (e) the debtor has committed an offence under this Act.]




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Head 39 - Power of Insolvency Service to revoke or amend a debt relief certificate Provide that: (1) The Insolvency Service may revoke or amend a debt relief certificate during the applicable moratorium period in the circumstances provided for by this section. (2) The Insolvency Service may revoke the certificate on the ground that—

(a) any information supplied to it by the debtor— (i) in, or in support of, the application, or (ii) after the determination date, was incomplete, incorrect or otherwise misleading; (b) the debtor has failed to comply with a duty under section 36; or (c) an adjudication in bankruptcy has been made in relation to the debtor that has not been annulled or discharged.

(3) The Insolvency Service may revoke the certificate on the ground that it should not have been satisfied—

(a) that the debts specified in the certificate were qualifying debts of the debtor as at the application date; (b) that the conditions specified in Head 23 were met [or that any failure to meet such a condition did not prevent its making the certificate.]

(4) The Insolvency Service may revoke the certificate on the ground that the conditions in Head 23 were not met at any time after the certificate was issued. For this purpose those conditions are to be read as if references to the determination date were references to the time in question. (5) Where the Insolvency Service decides to revoke the certificate, it may revoke it either—

(a) with immediate effect, or (b) with effect from such date (not more than 3 months after the date of the decision) as it may specify.

(6) In considering when the revocation should take effect the Insolvency Service shall consider (in the light of the grounds on which the decision to revoke was made and all the other circumstances of the case) whether the debtor should be given the opportunity to make arrangements for making payments towards his or her debts. (7) If the certificate has been revoked with effect from a specified date, the Insolvency Service may, if it thinks it appropriate to do so at any time before that date, revoke the certificate with immediate effect. (8) The Insolvency Service may amend a debt relief certificate for the purpose of correcting an error in or omission from anything specified in the certificate. (9) Section (8) does not permit the Insolvency Service to add any debts that were not specified in the application for the debt relief certificate to the list of qualifying debts.




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(10) The regulations may make further provision as to the procedure to be followed by the Insolvency Service in the exercise of its powers under this section.




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Head 40 - Powers of court in relation to debt relief certificates Provide that: (1) Any person may make an application to the court if he or she is dissatisfied by any act, omission or decision of the Insolvency Service in connection with a debt relief certificate or an application for such a certificate. (2) The Insolvency Service may make an application to the court for directions in relation to any matter arising in connection with a debt relief certificate or an application for such a certificate. (3) The matters referred to in subsection (2) include, among other things, matters relating to the debtor's compliance with any duty arising under Head 33. (4) An application under this section may, subject to anything in the rules, be made at any time. (5) The court may extend the moratorium period applicable to a debt relief certificate for the purposes of determining an application under this section. (6) On an application under this section the court may dismiss the application or do one or more of the following—

(a) revoke the whole or part of any act or decision of the Insolvency Service; (b) give the Insolvency Service directions (including a direction that it reconsider any matter in relation to which its act or decision has been revoked under sub-paragraph (a)); (c) make an order for the enforcement of any obligation on the debtor arising by virtue of a duty under Head 33; (d) extend the moratorium period applicable to the debt relief certificate; (e) make an order revoking or amending the debt relief certificate; (f) make an order under Head 37; or (g) make such other order as the court thinks fit.

(7) An order under subsection (6)(e) for the revocation of a debt relief certificate—

(a) may be made during the moratorium period applicable to the debt relief certificate or at any time after that period has ended; (b) may be made on the court's own motion if that court has made a bankruptcy certificate in relation to the debtor during that period; (c) may provide for the revocation of the certificate to take effect on such terms and at such a time as the court may specify.

(8) An order under subsection (6)(e) for the amendment of a debt relief certificate may not add any debts that were not specified in the application for the debt relief certificate to the list of qualifying debts.




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Head 41 - Inquiry by the court into debtor's dealings and property Provide that: (1) An order under this section may be made by the court on the application of the Insolvency Service. (2) An order under this section is an order summoning any of the following persons to appear before the court —

(a) the debtor; (b) the debtor's spouse or former spouse or the debtor's civil partner or former civil partner; (c) any person appearing to the court to be able to give information or assistance concerning the debtor or his or her dealings, affairs and property; (d) an authorised intermediary.

(3) The court may require a person falling within subsection (2)(c)—

(a) to provide a written account of his or her dealings with the debtor; or (b) to produce any documents in his or her possession or under his or her control relating to the debtor or to the debtor's dealings, affairs or property.

(4) Subsection (5) applies where a person fails without reasonable excuse to appear before the court when he or she is summoned to do so by an order under this head. (5) The court may cause a warrant to be issued—

(a) for the arrest of that person, and (b) for the seizure of any records or other documents in that person's possession.

(6) The court may authorise a person arrested under such a warrant to be kept in custody, and anything seized under such a warrant to be held,[ in accordance with the rules,] until that person is brought before the court under the warrant or until such other time as the court may order.




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Head 42- False representations and omissions Provide that: (1) A person who makes an application for a debt relief certificate shall be guilty of an offence if he or she knowingly or recklessly makes any false representation or omission in making the application or providing any information or documents to the Insolvency Service in support of the application. (2) A person who makes an application for a debt relief certificate shall be guilty of an offence if—

(a) he or she intentionally fails to comply with a duty under Head 33(3) in connection with the application; or (b) he or she knowingly or recklessly makes any false representation or omission in providing any information to the Insolvency Service in connection with such a duty or otherwise in connection with the application.

(3) It is immaterial for the purposes of an offence under subsections (1) or (2) whether or not a debt relief certificate is made as a result of the application. (4) A person in respect of whom a debt relief certificate is made shall be guilty of an offence if he or she—

(a) intentionally fails to comply with a duty under Head 33(5) in connection with the certificate; or (b) knowingly or recklessly makes any false representation or omission in providing information to the Insolvency Service in connection with such a duty or otherwise in connection with the performance by the Insolvency Service of functions in relation to the certificate.

(5) It is not material for the purposes of an offence under subsection (4)—

(a) whether the offence is committed during or after the moratorium period; and (b) whether or not the certificate is revoked after the conduct constituting the offence takes place.




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Head 43 - Concealment or falsification of documents Provide that: (1) A person in respect of whom a debt relief certificate is made shall be guilty of an offence if, during the moratorium period in relation to that certificate he or she—

(a) does not provide, at the request of the Insolvency Service, all of his or her books, papers and other records of which he or she has possession or control and which relate to his or her affairs; (b) prevents the production to the Insolvency Service of any books, papers or other records relating to his or her affairs; (c) conceals, destroys, mutilates or falsifies, or causes or permits the concealment, destruction, mutilation or falsification of, any books, papers or other records relating to his or her affairs; (d) makes, or causes or permits the making of, any false entries in any book, document or record relating to his or her affairs; or (e) disposes of, or alters or makes any omission in, or causes or permits the disposal, altering or making of any omission in, any book, document or record relating to his or her affairs.

(2) A person in respect of whom a debt relief certificate is made shall be guilty of an offence if he or she—

(a) did anything falling within sub-paragraphs (c) to (e) of subsection (1) during the period of 12 months ending with the application date; or (b) did anything falling within sub-paragraphs (b) to (e) of subsection (1) after that date but before the effective date.

(3) It shall be a defence for a person charged with an offence under this Head to prove that, in respect of the conduct constituting the offence, he or she had no intent to defraud or to conceal the state of his or her affairs. (4) In its application to a trading record paragraph (2)(a) has effect as if the reference to 12 months were a reference to 2 years. (5) In paragraph (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 (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 not material for the purposes of an offence under this section whether or not the debt relief certificate in question is revoked after the conduct constituting the offence takes place (but no offence is committed under this Head by virtue of conduct occurring after the certificate is revoked).




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Head 44 - Fraudulent disposal of property Provide that (1) A person in respect of whom a debt relief certificate is made shall be guilty of an offence if he or she made or caused to be made any gift or transfer of his or her property during the period between—

(a) the start of the period of 2 years ending with the application date; and (b) the end of the moratorium period.

(2) The reference in paragraph (1) to making a transfer of any property includes causing or conniving at the enforcement of a judgment, or the levying of any execution, against that property. (3) It shall be a defence for a person charged with an offence under this section to prove that, in respect of the conduct constituting the offence, he or she had no intent to defraud or to conceal the state of his or her affairs. (4) For the purposes of paragraph (3) a person is to be taken to have proved that he or she had no such intent if—

(a) sufficient evidence is adduced to raise an issue as to whether he or she had such intent; and (b) the contrary is not proved beyond reasonable doubt.

(5) It is not material for the purposes of this Head whether or not the debt relief certificate in question is revoked after the conduct constituting an offence takes place (but no offence is committed by virtue of conduct occurring after the certificate is revoked).




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Head 45 - Fraudulent dealing with property obtained on credit Provide that: (1) A person in respect of whom a debt relief certificate is issued shall be guilty of an offence if during the relevant period he or she disposed of any property which he or she had obtained on credit and, at the time he or she disposed of it, had not paid for it. (2) Any other person shall be guilty of an offence if during the relevant period he or she acquired or received property from a person in respect of whom a debt relief certificate 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 pay the money s/he so owed.

(3) In subsections (1) and (2) “relevant period” means the period between—

(a) the start of the period of 2 years ending with the application date; and (b) the determination date.

(4) In the case of an offence under subsection (1) it shall be a defence for the person charged to prove that the disposal of the property was in the ordinary course of a business carried on by the debtor at the time of the disposal (5) In the case of an offence under subsection (2) it shall be a defence for the person charged to prove that the acquisition or receipt of the property was in the ordinary course of a business carried on by the person acquiring or receiving the property from the debtor at the time of the acquisition or receipt. (6) In determining for the purposes of subsections (4) and (5) 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. (7) It shall be a defence for a person charged with an offence under subsection (1) to prove that, in respect of the conduct constituting the offence, he or she had no intent to defraud or to conceal the state of his or her affairs. (8) In this section references to disposing of property include pawning or pledging it and references to acquiring or receiving property shall be read accordingly. (9) It is not material for the purposes of this section whether or not the debt relief certificate in question is revoked after the conduct constituting an offence takes place (but no offence is committed by virtue of conduct occurring after the certificate is revoked).




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Head 46 - Obtaining credit or engaging in business by a debtor to whom a moratorium period applies Provide that: (1) A person in respect of whom a moratorium period is in operation or a debt relief certificate has been issued shall be guilty of an offence if, during the relevant period he or she—

(a) obtains credit (either alone or jointly with any other person) without giving the person from whom he or she obtains the credit the relevant information about his or her