Personal Insolvency (Amendment) Act 2015

1. Definition

1. In this Act “Principal Act” means the Personal Insolvency Act 2012.

2. Amendment of section 9 of Principal Act

2. Section 9(1) of the Principal Act is amended by—

(a) the substitution of the following for paragraph (e):

“(e) promote public awareness and understanding of matters relating to personal insolvency, and provide information on the working of this Act and of the Bankruptcy Act 1988, and on related matters including those specified in paragraphs (jb), (jc) and (jd),”,

and

(b) the insertion of the following after paragraph (ja) (inserted by section 38 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013):

“(jb) compile, collect, analyse and disseminate information and statistics on the operation of this Act and of the Bankruptcy Act 1988,

(jc) monitor and analyse developments, as respects the situation of insolvent debtors and trends in, and patterns of, debtor and creditor behaviour,

(jd) develop strategies for communicating with the public aimed at promoting the use of insolvency arrangements and enhancing their effective application,”.

3. Amendment of section 26 of Principal Act

3. Section 26 of the Principal Act is amended in subsection (2)(a) by the substitution of “€35,000” for “€20,000”.

4. Amendment of section 71 of Principal Act

4. Section 71 of the Principal Act is amended—

(a) in subsection (1), by the insertion of “and section 74A(2)(b) (inserted by section 7 of the Personal Insolvency (Amendment) Act 2015)” after “section 70(2)(b) ”, and

(b) by the substitution of the following for subsection (2):

“(2) Where a debtor’s financial position has materially changed in the period between the completion by him or her of a Prescribed Financial Statement under section 50 and the giving of a notice under section 70(2) or, as the case may be, section 74A(2) (inserted by section 7 of the Personal Insolvency (Amendment) Act 2015)—

(a) the debtor shall inform the personal insolvency practitioner of that fact and of the nature of such change, and

(b) the personal insolvency practitioner shall, if he or she considers that the change necessitates the completion of a new Prescribed Financial Statement, assist the debtor in completing such a new statement, and where those circumstances arise a reference in this section to the Prescribed Financial Statement shall be construed as a reference to the new Prescribed Financial Statement.

(3) Where a new Prescribed Financial Statement is completed pursuant to subsection (2), the personal insolvency practitioner shall furnish a copy of that Statement to the Insolvency Service.”.

5. Amendment of section 72 of Principal Act

5. Section 72 of the Principal Act is amended—

(a) in subsection (7), by the insertion of “or deemed to have been approved” after “approved”, and

(b) by the deletion of subsection (8).

6. Amendment of section 73 of Principal Act

6. Section 73 of the Principal Act is amended—

(a) by the substitution of the following for subsection (6):

“(6) A proposal for a Debt Settlement Arrangement shall be considered as having been approved by a creditors’ meeting held under this Chapter where creditors representing not less than 65 per cent of the total amount of the debtor’s debts due to the creditors participating in the meeting and voting have voted in favour of the proposal.”,

and

(b) in subsection (7), by the substitution of “Where a vote is held under section 72(5) and no creditor votes,” for “Where no creditor votes,”.

7. Approval of proposed Debt Settlement Arrangement where only one creditor

7. The Principal Act is amended by the insertion of the following after section 74:

“74A. (1) Where—

(a) a personal insolvency practitioner has prepared a proposal for a Debt Settlement Arrangement and the debtor has consented to that proposal, and

(b) only one creditor would be entitled to vote at a creditors’ meeting held under this Chapter (whether in respect of one or more debts),

the procedures specified in this section, and not those specified in sections 70, 72 and 73, shall apply in relation to the approval by that creditor of the proposal for a Debt Settlement Arrangement.

(2) A personal insolvency practitioner referred to in subsection (1) shall—

(a) give written notice to the creditor that the proposal for a Debt Settlement Arrangement has been prepared and that the creditor may, within the period specified in subsection (6) (a), notify the personal insolvency practitioner in writing of his or her approval or otherwise of that proposal,

(b) ensure that the notice referred to in paragraph (a) is accompanied by a copy of each of the documents referred to in section 71, and

(c) lodge a copy of the notice referred to in paragraph (a) and the documents referred to in paragraph (b) with the Insolvency Service.

(3) A personal insolvency practitioner who has complied with subsection (2) may, where he or she believes it is in the interests of obtaining approval of a proposed Debt Settlement Arrangement by the creditor and with the consent in writing of the debtor, prepare an amended proposal for a Debt Settlement Arrangement.

(4) Where the personal insolvency practitioner prepares an amended proposal for a Debt Settlement Arrangement pursuant to subsection (3) he or she shall—

(a) give written notice to the creditor that he or she may, within the period specified in subsection (6)(b), notify the personal insolvency practitioner in writing of his or her approval or otherwise of the amended proposal, which notice shall be accompanied by a copy of the amended proposal,

(b) give the debtor a copy of the documents referred to in paragraph (a), and

(c) lodge a copy of the documents referred to in paragraph (a) with the Insolvency Service.

(5) A proposal for a Debt Settlement Arrangement may, before the creditor has notified the personal insolvency practitioner of his or her approval or otherwise of the proposal, be subject to a proposal for a modification where the modification addresses an ambiguity or rectifies an error in the proposed Debt Settlement Arrangement and where—

(a) the modification has been proposed by the creditor or the personal insolvency practitioner, and

(b) the debtor gives his or her written consent to the modification.

(6) A creditor to whom this section applies shall notify the personal insolvency practitioner in writing of his or her approval or otherwise of a proposal for a Debt Settlement Arrangement within—

(a) 14 days of the giving to him or her of the notice under subsection (2), or

(b) if later, 7 days of the date on which a notice under subsection (4) (a) is first given to him or her.

(7) A proposal for a Debt Settlement Arrangement to which this section applies—

(a) shall be considered as having been approved by the creditor concerned where that creditor notifies the personal insolvency practitioner in accordance with subsection (6) of the creditor’s approval of that proposal, and

(b) where that creditor fails to comply with subsection (6), shall be deemed to have been approved by the creditor concerned.

(8) Where a creditor to whom this section applies notifies the personal insolvency practitioner in accordance with subsection (6) that he or she does not approve of the proposal, the Debt Settlement Arrangement procedure shall be deemed to have come to an end and the protective certificate issued under section 61 shall cease to have effect.

(9) Where a personal insolvency practitioner fails to give the creditor a notice under subsection (2) before the expiry of the protective certificate, the Debt Settlement Arrangement procedure shall be deemed to have come to an end.

(10) Where this section applies, a reference in section 61(13) to section 73 shall be construed as a reference to this section.”.

8. Amendment of section 75 of Principal Act

8. Section 75 of the Principal Act is amended—

(a) by the substitution of the following for subsection (1) (as amended by section 71 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013):

“(1) Where a Debt Settlement Arrangement is approved or, as the case may be, deemed to have been approved at a creditors’ meeting in accordance with section 73, the personal insolvency practitioner shall as soon as practicable after the meeting has concluded notify the Insolvency Service and each creditor concerned of that approval or, as the case may be, deemed approval, which notification shall be accompanied by—

(a) (i) subject to subparagraph (ii), a certificate with the result of the vote taken at the creditors’ meeting, identifying the number of votes, in value of the creditors present and voting, in favour of and against the proposed Debt Settlement Arrangement, and stating that the requisite proportion of creditors referred to in section 73(6) has approved the proposal for a Debt Settlement Arrangement, or

(ii) where section 73(7) applies to the proposal, a certificate to that effect,

(b) a copy of the approved Debt Settlement Arrangement, and

(c) a statement by the personal insolvency practitioner to the effect that he or she is of the opinion that—

(i) the debtor satisfies the eligibility criteria for the proposal of a Debt Settlement Arrangement specified in section 57,

(ii) the approved Debt Settlement Arrangement complies with the mandatory requirements referred to in section 65(2), and

(iii) the approved Debt Settlement Arrangement does not contain any terms that would release the debtor from an excluded debt, an excludable debt (other than a permitted debt) or a secured debt or otherwise affect such a debt.”,

(b) by the insertion of the following after subsection (1):

“(1A) Where a Debt Settlement Arrangement is approved or, as the case may be, deemed to have been approved in accordance with section 74A(7)(inserted by section 7 of the Personal Insolvency (Amendment) Act 2015), the personal insolvency practitioner shall as soon as practicable thereafter notify the Insolvency Service and each creditor concerned of that approval or, as the case may be, deemed approval, which notification shall be accompanied by—

(a) a certificate stating that section 74A applies to the proposed Debt Settlement Arrangement and that the proposal concerned has been approved or, as the case may be, deemed to have been approved in accordance with section 74A(7) by the only creditor entitled to vote on the proposal,

(b) a copy of the approved Debt Settlement Arrangement, and

(c) a statement by the personal insolvency practitioner to the effect that he or she is of the opinion that—

(i) the debtor satisfies the eligibility criteria for the proposal of a Debt Settlement Arrangement specified in section 57,

(ii) the approved Debt Settlement Arrangement complies with the mandatory requirements referred to in section 65(2), and

(iii) the approved Debt Settlement Arrangement does not contain any terms that would release the debtor from an excluded debt, an excludable debt (other than a permitted debt) or a secured debt or otherwise affect such a debt.”,

and

(c) in subsection (2), by the insertion of “or, as the case may be, subsection (1A) (inserted by section 8(b) of the Personal Insolvency (Amendment) Act 2015),” after “the documents referred to in subsection (1) ”.

9. Amendment of section 76 of Principal Act

9. Section 76 of the Principal Act is amended in subsection (1) by the insertion of “or, as the case may be, section 75(1A) (inserted by section 8(b) of the Personal Insolvency (Amendment) Act 2015)” after “pursuant to section 75(1) (as amended by section 71 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013)”.

10. Amendment of section 78 of Principal Act

10. Section 78 of the Principal Act is amended—

(a) in subsection (2), by the substitution of the following for paragraph (a) (iv):

“(iv) proposal for a Debt Settlement Arrangement, as the case may be—

(I) has been approved by the requisite proportion of creditors referred to in section 73(6),

(II) is one to which section 73(7) applies, or

(III) has been approved or, as the case may be, deemed to have been approved in accordance with section 74A(7) (inserted by section 7 of the Personal Insolvency (Amendment) Act 2015),”,

and

(b) by the substitution of the following for subsection (5) (as amended by section 73 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013):

“(5) For the purposes of subsection (2), the appropriate court may accept—

(a) the certificate of the personal insolvency practitioner referred to in section 75(1)(a)(i) (as amended by section 8(a) of the Personal Insolvency (Amendment) Act 2015) as evidence that the proposal for a Debt Settlement Arrangement has been approved by the requisite proportion of creditors referred to in section 73(6),

(b) the certificate of the personal insolvency practitioner referred to in section 75(1)(a)(ii) (as amended by section 8(a) of the Personal Insolvency (Amendment) Act 2015) as evidence that the proposal for a Debt Settlement Arrangement is one to which section 73(7) applies,

(c) the certificate of the personal insolvency practitioner referred to in section 75(1A) (inserted by section 8(b) of the Personal Insolvency (Amendment) Act 2015) as evidence that the Debt Settlement Arrangement has been approved or, as the case may be, deemed to have been approved in accordance with section 74A(7) (inserted by section 7 of the Personal Insolvency (Amendment) Act 2015), and

(d) the statement of the personal insolvency practitioner referred to in section 75(1)(c) (as amended by section 71 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013) or, as the case may be, section 75(1A)(c) (inserted by section 8(b) of the Personal Insolvency (Amendment) Act 2015) as evidence of any matter referred to in subsection (2) which is the subject of that statement.”.

11. Amendment of section 82 of Principal Act

11. The Principal Act is amended by the substitution of the following for section 82 (as amended by section 75 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013):

“82. (1) Subject to this section, a Debt Settlement Arrangement may be varied in accordance with its terms.

(2) A personal insolvency practitioner, whether on his or her own initiative or on a request made in accordance with subsection (3), shall propose a variation of a Debt Settlement Arrangement (in this section referred to as a ‘variation’) where—

(a) it appears to the personal insolvency practitioner that there has been a material change in the debtor’s circumstances, and

(b) the personal insolvency practitioner is satisfied that there is a reasonable prospect that a variation that addresses such circumstances would be approved in accordance with this section.

(3) A debtor or creditor who is bound by a Debt Settlement Arrangement may request the personal insolvency practitioner to propose a variation of the Arrangement, which request shall be—

(a) in writing,

(b) accompanied by information or evidence to support the assertion that there has been a material change in the debtor’s circumstances, and

(c) accompanied by the written consent of the person making the request to the—

(i) making by the personal insolvency practitioner of an enquiry under subsection (4), and

(ii) disclosure by the personal insolvency practitioner of personal data of the person, to the extent necessary for such an enquiry.

(4) A personal insolvency practitioner shall, within 21 days of receipt of a request under subsection (3), decide whether paragraphs (a) and (b) of subsection (2) apply in relation to the Debt Settlement Arrangement concerned and, for that purpose—

(a) may request any further information he or she requires from the person who made the request, and

(b) may make such enquiries as he or she considers necessary in order to arrive at his or her decision.

(5) For the purpose of deciding, whether under subsection (4) or otherwise, whether paragraphs (a) and (b) of subsection (2) apply in relation to the Debt Settlement Arrangement concerned, the personal insolvency practitioner may require the debtor concerned, where necessary with the assistance of the personal insolvency practitioner, to complete a new Prescribed Financial Statement.

(6) Where the personal insolvency practitioner is satisfied that paragraphs (a) and (b) of subsection (2) apply in relation to the Debt Settlement Arrangement concerned, he or she shall without delay—

(a) require the debtor concerned, where necessary with the assistance of the personal insolvency practitioner, to complete a new Prescribed Financial Statement, unless the debtor has completed a Prescribed Financial Statement under subsection (5) and the information contained in it remains complete and accurate,

(b) formulate a proposal for a variation,

(c) seek the written consent of the debtor to the proposal and, subject to subsection (8), to the calling of a meeting of the creditors of the debtor for the purpose of considering the proposal, and

(d) subject to subsection (8), where the consent of the debtor referred to in paragraph (c) has been given, arrange for the holding of the meeting referred to in that paragraph.

(7) When calling a creditors’ meeting to be held under this section, the personal insolvency practitioner shall—

(a) give each creditor at least 14 days’ written notice of the meeting and the date on which, and the time and place at which, the meeting will be held,

(b) ensure that the notice referred to in paragraph (a) is accompanied by—

(i) a written proposal for the variation of the Debt Settlement Arrangement,

(ii) a report of the personal insolvency practitioner—

(I) describing the outcome for the creditors and for the debtor under the terms of the proposal, and

(II) indicating whether or not he or she is of the opinion that the debtor is reasonably likely to be able to comply with the terms of the Debt Settlement Arrangement as varied in accordance with the proposal,

(iii) the Prescribed Financial Statement completed by the debtor under subsection (5) or (6), as the case may be, and

(iv) such other information obtained by the personal insolvency practitioner under this section as he or she considers relevant,

and

(c) lodge a copy of the notice referred to in paragraph (a) and the documents referred to in paragraph (b) with the Insolvency Service.