{"id":136,"date":"2016-10-23T16:51:20","date_gmt":"2016-10-23T16:51:20","guid":{"rendered":"http:\/\/thecompliancealliance.co.uk\/blog\/?p=136"},"modified":"2018-04-23T14:07:58","modified_gmt":"2018-04-23T14:07:58","slug":"2017changes","status":"publish","type":"post","link":"https:\/\/thecompliancealliance.co.uk\/blog\/legislation\/2017changes\/","title":{"rendered":"2017: it\u2019s not all about the Rules"},"content":{"rendered":"<p>A watched kettle never boils, so I\u2019ll stop watching for the new Rules to land \u2013 having missed their \u201caim\u201d of w\/c 10\/10\/16, the Insolvency Service is now claiming that it was always their \u201cplan\u201d to have them issued this <em>month<\/em> \u2013 and instead I\u2019ll shift my focus to what other delights the next year may bring.<\/p>\n<h2><strong>A Review of the Bonding Regime <\/strong><\/h2>\n<p>What do you think? Is the bonding regime fit for purpose? Does it <em>really <\/em>work as an effective protection?<\/p>\n<p>The Government has issued a Call for Evidence to explore the weaknesses and reform possibilities of the bonding regime. The opportunity for submissions closes on 16 December 2016 and the Insolvency Service\u2019s document can be found at: <a href=\"https:\/\/goo.gl\/wiKc0K\">https:\/\/goo.gl\/wiKc0K<\/a>.<\/p>\n<p>The document notes that the Insolvency Service has \u201cseen evidence where the costs claimed by an insolvency practitioner in proving a bond claim are disproportionate to the loss suffered by the insolvent estate\u201d, whilst the specific penalty bond premiums have increased for smaller firms by 200% in one year. No wonder there are questions over whether bonding is achieving its objective.<\/p>\n<p>The Call for Evidence explores questions (albeit worded differently) such as:<\/p>\n<ul>\n<li>Would a system similar to the legal profession\u2019s arrangements for dealing with fraud and dishonesty work for insolvency?<\/li>\n<li>Could a solution be a \u201cclaims management protocol\u201d incorporating a panel of IPs to deal with bond claims and ways to limit cost?<\/li>\n<li>Alternatively, perhaps the bonding regime should be abolished altogether?<\/li>\n<\/ul>\n<h2><strong>Complaints-handling by the RPBs<\/strong><\/h2>\n<p>In September, the Insolvency Service released a summary of its review into the RPBs\u2019 complaints-handling processes.<\/p>\n<p>The Service reported that \u201cthe introduction of Common Sanctions Guidance has improved transparency in decision-making but there is scope to ensure more consistency in the application of the guidance\u201d. The Service\u2019s answer is to work with the RPBs to make changes to the guidance.<\/p>\n<p>Three other main recommendations emerged from the review:<\/p>\n<p style=\"padding-left: 30px;\"><em><strong>1.\u00a0 The RPBs should ensure that information is sought from the IP, e.g. \u201cif the complainant has not provided or is unable to provide evidence to support their complaint\u201d, unless there is a justified reason not to do so (whatever <\/strong><\/em><strong>that<\/strong><em><strong> looks like).<\/strong><\/em><\/p>\n<p>The Service seems to be expecting the RPBs to conduct thorough investigations on receipt of nothing more than unsupported suspicions raised by parties who then go to ground as soon as they\u2019re asked to explain or substantiate their allegations. The Service also seems to take no account of the costs to IPs in responding to RPB requests, which of course are not recoverable from the insolvent estates irrespective of whether the complaint is founded. Isn\u2019t it about time that the Service stopped labouring onto IPs more and more expensive burdens whilst simultaneously pursuing the agenda that IPs\u2019 fees need to be curbed?<\/p>\n<p>The report explains that \u201cthe most common reasons for closing a complaint at the assessment stage are the complainant\u2019s failure to respond to further enquiries or their inability to provide evidence to support their complaint\u201d. The Service also reports that \u201cthe review identified that some cases had been closed which appeared to merit further investigation\u201d. Thus, the Service is recommending that RPBs look to the IPs for the information and evidence.<\/p>\n<p style=\"padding-left: 30px;\"><em><strong>2.\u00a0 The RPBs should consider with the Service the feasibility of a regulatory mechanism whereby compensation can be paid by the IP to the complainant where they have suffered inconvenience, loss, or distress.<\/strong><\/em><\/p>\n<p>The Service is recommending this measure \u201cto ensure fair treatment for complainants\u201d, given that some RPBs (but see below) have a compensation mechanism, but others do not. But how often do the RPBs <em>order<\/em> compensation? This information is conspicuous by its absence from the report.<\/p>\n<p>From the report, it seems that the ACCA is the <em>only <\/em>RPB with a formal compensation mechanism. In view of the fact that the ACCA is handing over its complaints-handling to the IPA with effect from 1 January 2017, surely the simplest way to make things \u201cfair\u201d to all complainants is to have <em>no <\/em>compensation mechanism, isn\u2019t it?<\/p>\n<p>I also do not understand the Service\u2019s logic in arguing that compensation should be offered \u201cwhere minor errors or mistakes have been made\u201d, whilst accepting that \u201cany such mechanism would not be a substitute for any legal remedies available to individual complainants through the Courts\u201d. Next thing we know the Service will be expecting the RPBs to decide whether fees are excessive on fairly straightforward cases, whilst accepting that decisions on really meaty fees should remain with the courts. Oh hang on a minute\u2026<\/p>\n<p>Unfortunately, the IPA is making it easy for the Service to push its agenda: the report mentions that the IPA intends to introduce a formal conciliation process in any event (which is news to me, as I suspect it is to most IPA members).<\/p>\n<p style=\"padding-left: 30px;\"><em><strong>3.\u00a0 RPBs experiencing particular issues progressing complaints cases should discuss their plans with the Service.<\/strong><\/em><\/p>\n<p>I think this is directed mainly at the ACCA, which has come in for some heavy criticism, as reported in the Insolvency Service\u2019s monitoring reports over the last couple of years. Now that the ACCA has announced its \u201ccollaboration\u201d with the IPA, which will investigate and decide on complaints levelled at ACCA licensed IPs (as well as conduct their monitoring visits), perhaps the Service already will be happy to tick that box.<\/p>\n<p>To read the full report, go to: <a href=\"https:\/\/goo.gl\/radZpS\">https:\/\/goo.gl\/radZpS<\/a>.<\/p>\n<h2><strong>Action on Anti-Money Laundering <\/strong><\/h2>\n<p>This subject really deserves a blog post of its own. The prospects for change are coming from all directions.<\/p>\n<h3><em>\u201cConsent\u201d SARs no more<\/em><\/h3>\n<p>Actually, this happened in July, but I\u2019ve not seen it covered elsewhere, so I thought I would shoe-horn it in here. Although the Proceeds of Crime Act 2002 refers to \u201cconsent\u201d, the NCA has issued guidance clarifying that it will no longer be granting consent, but rather a \u201cdefence to a money laundering offence\u201d.<\/p>\n<p>The NCA has taken this step to counteract the \u201cfrequent misinterpretation of the effect of \u2018consent\u2019 (e.g. assuming that it results in permission to proceed, or is a statement that the money is \u2018clean\u2019 or that the NCA condoned the activity going ahead)\u201d.<\/p>\n<p>To request a \u201cdefence\u201d, however, you will still need to tick the \u201cconsent requested\u201d box on the SAR submission.<\/p>\n<p>For a useful reminder on the purpose and process of consent\/defence SARs, including the kinds of responses you might get back from the NCA, go to <a href=\"https:\/\/goo.gl\/c8tJzk\">https:\/\/goo.gl\/c8tJzk<\/a>.<\/p>\n<h3><em>Allowing \u201cjoint\u201d SARs and other proposals<\/em><\/h3>\n<p>In April, the Government (via HM Treasury) issued an \u201cAction Plan\u201d, representing \u201cthe most significant change to our anti-money laundering and terrorist finance regime in over a decade\u201d, and the Government sought views on the proposed actions.<\/p>\n<p>Amongst other things, the Government was proposing to reform SARs, given the enormous resource demand of c.400,000 SARs submitted each year. The proposals included doing away with the SARs consent\/defence process altogether, which alarmed me considerably, but I was relieved to see that the Law Society and others (including R3, although I have to say that they were not as forceful as the LawSoc) urged the Government to reconsider.<\/p>\n<p>The Government\u2019s response on the consultation was issued earlier this month at <a href=\"https:\/\/goo.gl\/pzezpx\">https:\/\/goo.gl\/pzezpx<\/a> and the conclusions are reflected in the Criminal Finances Bill, which is now making its way through Parliament.<\/p>\n<p>I can only see the proposed changes affecting IPs in exceptional cases, but in brief they include:<\/p>\n<ul>\n<li><em>some <\/em>changes to the SARs regime including empowering the NCA to obtain further information from SARs reporters, but the consent process will continue at least for the moment (\u201cthe Government will keep this issue under review\u201d);<\/li>\n<li>\u201cestablishing a new information sharing gateway for the exchange of data on suspicions\u2026 between private sector firms with immunity from civil liability\u201d \u2013 I am interested to discover how this will be constructed, although the Government response does include reference to\u2026<\/li>\n<li>enabling \u201cjoint\u201d SARs to be submitted, which I\u2019m sure will be good news to all IPs who have been conscious of multiple SARs being submitted on cases involving external joint office holders and legal advisers;<\/li>\n<li>introducing Unexplained Wealth Orders;<\/li>\n<li>strengthening powers to seize and forfeit criminal proceeds in bank accounts or \u201cportable high value items\u201d such as gold.<\/li>\n<\/ul>\n<h3><em>The Fourth Money Laundering Directive<\/em><\/h3>\n<p>I understand that Brexit is unlikely to halt the progress of the EU\u2019s Fourth Money Laundering Directive in the UK, which is set to be transposed into national law by 26 June 2017.<\/p>\n<p>In September, HM Treasury issued a consultation on how the Directive should be implemented. The consultation document can be found at <a href=\"https:\/\/goo.gl\/5AdhQd\">https:\/\/goo.gl\/5AdhQd<\/a> and it closes on 10 November 2016.<\/p>\n<p>Items with the potential to affect IPs include:<\/p>\n<ul>\n<li>a reduction in the threshold for cash or \u201coccasional\u201d transactions from \u20ac15,000 to \u20ac10,000;<\/li>\n<li>changes in the criteria triggering simplified and enhanced due diligence;<\/li>\n<li>a potential widening of the scope of those whose AML due diligence may be relied upon (which I find interesting given that the RPBs seem to recommend avoiding reliance);<\/li>\n<li>potential prescription surrounding requirements for certain businesses to appoint compliance officers, to conduct employee screening, and to carry out independent audits;<\/li>\n<li>a requirement to retain AML due diligence records for 10 years (up from 5 years); and<\/li>\n<li>a requirement for certain Supervisors (i.e. the RPBs and others) to \u201ctake necessary measures to prevent criminals convicted in relevant areas or their associates from holding a management function in, or being the beneficial owners of\u201d AML-regulated businesses (which, personally, I think is extremely unfair \u2013 for example, is it fair to curtail someone\u2019s career because of what their father has done?). Although the consultation refers only to accountants, solicitors and some other businesses as needing this oversight, I would be surprised if IPs escape notice when any legislation is drafted.<\/li>\n<\/ul>\n<h2><strong>More and More Changes in Scotland<\/strong><\/h2>\n<h3><em>Imminent changes<\/em><\/h3>\n<p>As we know, the new Bankruptcy (Scotland) Act 2016 (and presumably the accompanying Regulations, which are yet to be finalised) come into force on 30 November 2016.<\/p>\n<p>The AiB has headlined the Act and Regulations as \u201cbusiness as usual\u201d but simply a cleaner and more straightforward reorganisation of the existing statutory instruments, the most material effect being that what was the Protected Trust Deeds (Scotland) Regulations 2013 has been written into the <em>Act <\/em>(all except from the forms, which are in the 2016 Regs).<\/p>\n<p>However, inevitably the AiB has taken the opportunity to slip in a couple of changes. As drafted, the MAP asset threshold will be reduced from \u00a35,000 to \u00a32,000 (Regulation 14).<\/p>\n<p>In its response to the AiB\u2019s informal consultation on the draft Regulations, ICAS took the opportunity to raise a number of issues, including having another dig at the AiB\u2019s compromising positions as both supervisor and supplier of debt management\/relief services. As regards these expressions of concern and ICAS\u2019 attempt to highlight the archaic \u201coverly penal\u201d use of an 8% statutory interest rate, I say: \u201cgood for them!\u201d.<\/p>\n<p>ICAS also points out apparent deficiencies in the Regulations\u2019 treatment of money advisers, who are required under the draft Regulations to have a licence to use the Common Financial Statement, but the Money Advice Trust provides licences to organisations, not individuals. There also appears to be a flaw in the Regulations in that it does not allow a non-accountant\/solicitor IP to be a money adviser if they or their employers provide other financial services.<\/p>\n<p>To read ICAS\u2019 response in full, go to: <a href=\"https:\/\/goo.gl\/xSaKkv\">https:\/\/goo.gl\/xSaKkv<\/a>.<\/p>\n<h3><em>Future changes to PTDs and DAS<\/em><\/h3>\n<p>Earlier this year, the AiB ran consultations as part of their reviews of PTDs and DAS. The AiB published summaries of the consultation responses in July 2016 (see <a href=\"https:\/\/goo.gl\/MW6gC5\">https:\/\/goo.gl\/MW6gC5<\/a>) and the AiB has promised its own responses \u201cin the coming weeks\u201d, although these have yet to emerge (not surprising really, given everything else going on!).<\/p>\n<p>The scope of the consultation questions was vast and the reviews have the potential to affect many aspects of the two procedures.<\/p>\n<h2><strong>New Restructuring Moratoriums and Plans\u2026 but no changes to rescue finance priority<\/strong><\/h2>\n<p>Although the Government has not yet provided its response to the consultation, \u201cA Review of the Corporate Insolvency Framework\u201d, which ended on in July 2016, it has issued a summary of responses at <a href=\"https:\/\/goo.gl\/Cf0LWK\">https:\/\/goo.gl\/Cf0LWK<\/a>.<\/p>\n<p>The summary does hint, however, that the Government is likely to take forward some of the proposals.<\/p>\n<h3><em>The introduction of a pre\/extra-insolvency moratorium<\/em><\/h3>\n<p>If the Government were to go with the majority (yes I know, that\u2019s a big \u201cif\u201d), the new moratorium:<\/p>\n<ul>\n<li>would be initiated by a simple court filing;<\/li>\n<li>would have stronger\/more safeguards to protect creditors\u2019 interests than as originally proposed;<\/li>\n<li>potentially would not suspend directors\u2019 liability for wrongful trading;<\/li>\n<li>would be shorter than the originally proposed 3 months, probably 21 days;<\/li>\n<li>could be extended without the need to obtain the approval of all secured creditors;<\/li>\n<li>would not affect the length of any subsequent Administration (woo hoo!);<\/li>\n<li>would be supervised only by a licensed IP (double woo hoo!);<\/li>\n<li>would provide for costs incurred during the moratorium to be paid during the moratorium or, failing that, to enjoy a first charge if an insolvency process follows on; and<\/li>\n<li>would provide creditors with the power to seek information (with certain safeguards and exemptions).<\/li>\n<\/ul>\n<h3><em>Essential suppliers to be held to ransom?<\/em><\/h3>\n<p>In contrast, consultation responses were split on whether more should be done to bind essential suppliers to keep on supplying during a moratorium or indeed during an Administration, CVA or potentially new \u201calternative restructuring plan\u201d. The only clear majority response was that providing suppliers with recourse to court to object to being designated by the company as \u201cessential\u201d was an inadequate safeguard for suppliers.<\/p>\n<p>The reaction? \u201cGovernment notes stakeholder concerns and is continuing to consider the matter.\u201d<\/p>\n<h3><em>A new restructuring plan with \u201ccram down\u201d<\/em><\/h3>\n<p>Cheekily, the consultation actually didn\u2019t ask<em> whether<\/em> we saw value in a proposed new restructuring plan. It just asked how we saw it working.<\/p>\n<p>The majority were in favour of a court-approved cram down process with the suggested addition that the cram down provisions could also apply to shareholders.<\/p>\n<h3><em>Will the long grass welcome back the proposal for super-priority rescue finance?<\/em><\/h3>\n<p>The Government had revived its 2009 proposal for super-priority rescue funding. Again this time, the response was pretty overwhelming with 73% disagreeing with the proposals.<\/p>\n<h2><strong>Further Education Insolvencies<\/strong><\/h2>\n<p>In July 2016, BIS issued a consultation that explored whether the usual insolvency procedures \u2013 as well as a Special Administration Regime \u2013 should be introduced to deal with insolvent further education and sixth form colleges in England.<\/p>\n<p>The proposed objectives of the education Special Administration include to \u201cavoid or minimise disruption to the studies of the existing students of the further education body as a whole\u201d. The Government envisages that this emphasis would \u201cprovide more time than normal insolvency procedures to mitigate the risk that a college is wound up quickly and in a way which, by focusing only on creditors, would be likely to damage learners.\u201d<\/p>\n<p>Although a Government response has yet to be issued (the consultation closed on 5 August 2016), my scanning of a few published responses indicates that there are some loud objections to the idea from those working in the sector. Many of those who responded to the consultation also expressed exasperation that BIS issued a 4-week consultation over the holiday period, which does seem particularly insensitive in view of the intended audience (which strangely did not include IPs!).<\/p>\n<h2><strong>Recast EC Regulation on Insolvency Proceedings<\/strong><\/h2>\n<p>This is another piece of legislation that is set to come into force on 26 June 2017.<\/p>\n<p>I admit that my partner, Jo Harris, is far more knowledgeable on this subject than me and personally I\u2019m waiting for her to record a webinar on it, so that I can learn all about it (no pressure, Jo! \ud83d\ude09 ).<\/p>\n<h2><strong>SIP13, SIP15\u2026 and many others<\/strong><\/h2>\n<p>The JIC\u2019s consultations on revised drafts of SIP13 and SIP15 closed many months ago. I understand that a revised SIP13 is very near to being issued and the aim is to have a revised SIP15 also issued before the end of the year.<\/p>\n<p>Given that many of the SIPs refer to the Insolvency Rules 1986 \u2013 SIP8 on S98 meetings comes immediately to mind \u2013 many will need to be reviewed over the next 5 months if they are to remain reliable and relevant (although admittedly it has not stopped SIP13 continuing to refer to S23 meetings and Rule 2.2 reports, despite the fact that they were abolished in 2003!). Well, it\u2019s not as if we have anything else to do, is it?!<\/p>\n<p>&nbsp;<\/p>\n","protected":false},"excerpt":{"rendered":"<p>A watched kettle never boils, so I\u2019ll stop watching for the new Rules to land \u2013 having missed their \u201caim\u201d of w\/c 10\/10\/16, the Insolvency Service is now claiming that it was always their \u201cplan\u201d to have them issued this &hellip; <a href=\"https:\/\/thecompliancealliance.co.uk\/blog\/legislation\/2017changes\/\">Continue reading <span class=\"meta-nav\">&rarr;<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","enabled":false},"version":2}},"categories":[4,54],"tags":[68,72,66,46,71,67,70,38,69],"class_list":["post-136","post","type-post","status-publish","format-standard","hentry","category-legislation","category-news","tag-anti-money-laundering","tag-further-education-insolvency","tag-insolvency-bond","tag-insolvency-service","tag-moratorium","tag-rpb","tag-sar","tag-sips","tag-suspicious-activity-report"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p6i4jv-2c","_links":{"self":[{"href":"https:\/\/thecompliancealliance.co.uk\/blog\/wp-json\/wp\/v2\/posts\/136","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thecompliancealliance.co.uk\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thecompliancealliance.co.uk\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thecompliancealliance.co.uk\/blog\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/thecompliancealliance.co.uk\/blog\/wp-json\/wp\/v2\/comments?post=136"}],"version-history":[{"count":6,"href":"https:\/\/thecompliancealliance.co.uk\/blog\/wp-json\/wp\/v2\/posts\/136\/revisions"}],"predecessor-version":[{"id":142,"href":"https:\/\/thecompliancealliance.co.uk\/blog\/wp-json\/wp\/v2\/posts\/136\/revisions\/142"}],"wp:attachment":[{"href":"https:\/\/thecompliancealliance.co.uk\/blog\/wp-json\/wp\/v2\/media?parent=136"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thecompliancealliance.co.uk\/blog\/wp-json\/wp\/v2\/categories?post=136"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thecompliancealliance.co.uk\/blog\/wp-json\/wp\/v2\/tags?post=136"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}