The Debt Relief Orders (Designation of Competent Authorities) Regulations (Northern Ireland) 2011

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Debt Relief Orders (Designation of Competent Authorities) Regulations (Northern Ireland) 2011 and come into operation on 30th June 2011.

(2) “the Department” means the Department of Enterprise, Trade and Investment.

(3) “The Order” means the Insolvency (Northern Ireland) Order 1989.

PART I Competent authorities

Designated competent authorities

2.—(1) The Department may designate a body which appears to it to fall within paragraph (2) to be a competent authority for the purposes of granting approvals under Article 208U of the Order.

(2) A body may be designated by the Department if—

(a) it makes an application to the Department to be designated as a competent authority in accordance with the Order and these Regulations;

(b) it provides or ensures—

(i) the provision of debt management or debt counselling services through intermediaries, and

(ii) the provision to those intermediaries of education, training and development (including continuing education, training and development) in debt management or debt counselling services, and

(c) it appears to the Department that it is a fit and proper body to approve individuals to act as intermediaries between a person wishing to make an application for a debt relief order and the official receiver.

Application for designation as a competent authority

3.—(1) An application by a body (“the applicant body”) for designation as a competent authority for the purposes of granting approvals under Article 208U of the Order (“the application”) shall be made to the Department in writing and contain—

(a) the applicant body’s full name;

(b) the address of its registered office or, if it has no registered office, the address of its centre of administration or principal place of business;

(c) its registered number (if any);

(d) if registered outside the United Kingdom, the state in which it is registered and the place where the register is maintained;

(e) if not registered, the nature of the applicant body;

(f) a copy of its constitution;

(g) if a charitable body, the objects or purposes of the charity (if not set out in the constitution) and—

(i) if registered as a charity, its registered number as such and (if registered outside the United Kingdom) the state in which it is registered and the place where the register is maintained, or,

(ii) if not registered as a charity, reasons why it is not so registered;

(h) a description of the applicant body’s current occupation or activities;

(i) reasons why the applicant body should be considered for designation;

(j) a copy (if any) of its most recent—

(i) audited accounts and balance sheet, and

(ii) other statutorily required report;

(k) a statement of the sources of the applicant body’s income over the past 24 months and of its assets and liabilities not earlier than 12 months before the day on which the application is made;

(l) details of the nature of the applicant body’s connection with the provision of debt management or debt counselling services to the public;

(m) details of existing or proposed education, training and development programmes which are, or which are to be, made available to individuals who are to be approved as, or who are acting as, approved intermediaries;

(n) a description and explanation of—

(i) the procedure which the applicant body proposes to adopt for the approval of individuals to act as intermediaries;

(ii) the manner in which the applicant body will ensure that individuals meet the conditions set out in these Regulations subject to compliance with which an intermediary may be approved;

(iii) any additional criteria which the applicant body proposes to adopt against which it will assess the competence of individuals to act as intermediaries;

(o) an undertaking on the part of the applicant body that—

(i) it will not grant approval to individuals to act as intermediaries except as provided in these Regulations;

(ii) it will withdraw approvals of individuals to act as intermediaries as provided in these Regulations; and

(iii) it will adopt an accessible, effective, fair and transparent procedure for dealing with complaints about its functions as a competent authority, including complaints about—

(aa) any intermediary approved by it, or

(bb) the activities of any such intermediary;

(p) details of the procedures referred to in subparagraph (o)(iii) and how and to what extent they are or will be published;

(q) a statement that such procedures will include the giving of notice to any complainant to the applicant body under subparagraph (o)(iii) that, if dissatisfied with the applicant body’s response to the complaint, the complainant may refer the complaint and the response to the Department;

(r) details of any consumer credit licence and public liability or indemnity insurance which the applicant body holds;

(s) if the applicant body holds a consumer credit licence, whether it provides cover for persons approved by it to act as, and in the course of acting as such intermediaries.

(2) The application may be accompanied by further information in support of the application; and the Department may request the applicant body to supply further information or evidence.

Fit and proper body

4.—(1) A body may not be designated a competent authority unless it is a fit and proper body to act as such.

(2) Without prejudice to the generality of paragraph (1), a body is not a fit and proper body qualified to act as a competent authority if it—

(a) has committed any offence under any statutory provision contained in insolvency legislation;

(b) has engaged in any deceitful or oppressive or otherwise unfair or improper practices, whether unlawful or not, or any practices which otherwise cast doubt upon the probity of the body; or

(c) has not carried on its activities with integrity and the skills appropriate to the proper performance of the duties of—

(i) a body which purports to ensure the provision of, or to provide, debt management or debt counselling services to the public, or

(ii) a competent authority; or

(d) has entered into a company voluntary arrangement under Part 2 of the Order.

Extent of designation

5.  The Department shall designate a competent authority by sending to the applicant body a letter of designation which shall contain—

(a) a statement that the applicant body as competent authority is designated to approve persons of any description (“unlimited designation”), or

(b) a statement that the applicant body as competent authority is designated to approve persons only of a particular description (“limited designation”) and the description of person to which the designation is limited.

Withdrawal of designation as competent authority

6.—(1) The Department may at any time—

(a) modify or withdraw an existing designation where a competent authority so requests or with its consent, or

(b) withdraw an existing designation where it appears to the Department that a body—

(i) is not or is no longer a fit and proper body to act as a competent authority;

(ii) has failed to comply with any provision of Part 7A of the Order or any rules, regulations or order made under it, including any failure to approve an intermediary, or failure to withdraw approval of an intermediary, in accordance with these regulations;

(iii) has furnished the Department with any false, inaccurate or misleading information.

(2) The Department may from time to time request a competent authority to supply such information or evidence about—

(a) itself and its activities as a competent authority, or

(b) any intermediary appointed by it or the activities of any such intermediary,

as may be required by it for the purpose of ensuring that the requirements of these regulations are being met.

PART II Approval of intermediaries

Approval by competent authority

7.—(1) A competent authority may approve an individual to act as an intermediary between a person wishing to make an application for a debt relief order and the official receiver subject as follows.

(2) An individual may be approved—

(a) if the individual makes an application to a competent authority to be approved as an intermediary in accordance with the Order and these regulations; and

(b) it appears to the competent authority that the individual is a fit and proper person to act as intermediary between a person wishing to make an application for a debt relief order and the official receiver.

Ineligibility

8.  Individuals of any of the following descriptions are ineligible to be approved by a competent authority to act as intermediaries—

(a) individuals convicted of any offence involving fraud or other dishonesty or violence whose convictions are not spent;

(b) individuals who have committed any offence in any statutory provision contained in insolvency legislation;

(c) individuals who, in the course of carrying on any trade, profession or vocation or in the course of the discharge of any functions relating to any office or employment have engaged in any deceitful or oppressive or otherwise unfair or improper practices, whether unlawful or not, or which otherwise cast doubt upon their probity;

(d) individuals who have no experience, education or other training in the provision of debt management or debt counselling services;

(e) individuals who have not acted with the independence, integrity and the skills appropriate to the proper performance of the duties of a provider of debt management or debt counselling services or of an approved intermediary;

(f) undischarged bankrupts;

(g) individuals in respect of whom there is or has been in force a bankruptcy restrictions order or undertaking or an interim bankruptcy restrictions order or undertaking or any bankruptcy restrictions order or undertaking made under the Insolvency Act 1986(1);

(h) individuals to whom a moratorium period applies or in respect of whom a debt relief order or application for a debt relief order, has been made;

(i) individuals in respect of whom there is or has been in force a debt relief restrictions order or undertaking or an interim debt relief restrictions order or undertaking;

(j) individuals who are or have been subject to a disqualification order made or disqualification undertaking accepted under the Company Directors Disqualification (Northern Ireland) Order 2002(2), or to a disqualification order under Part II of the Companies (Northern Ireland) Order 1989(3), or to a disqualification order or undertaking accepted under the Company Directors Disqualification Act 1986(4);

(k) individuals who patients within the meaning of Article 2, or Articles 97(1) and 109 of the Mental Health (Northern Ireland) Order 1986(5);

(l) individuals who, subject to any exemption from the requirement to possess or be covered by a relevant consumer credit licence which would otherwise apply to or in relation to them, neither possess nor are validly covered by such a licence; and

(m) individuals who are not covered, either individually or by way of a group policy, by public liability or personal indemnity insurance.

Applications to a competent authority for approval to act as intermediary

9.—(1) Applications to a competent authority by an individual for approval to act as an intermediary shall be in writing and contain—

(a) the individual’s full name and address, date of birth and gender;

(b) any name or names used by the applicant for any purpose, if different from the above;

(c) a description of the individual’s current occupation or activities;

(d) a description giving reasons why the individual should be considered suitable for approval;

(e) whether the individual is a member of a relevant body and if so which;

(f) the individual’s educational and professional qualifications;

(g) the source of the individual’s income and the individual’s current financial status;

(h) details of the individual’s expertise in the provision of debt management or debt counselling services including details of any education, training and development which the individual has undergone and any qualifications the individual has acquired in connection with the provision of debt management or debt counselling services;

(i) details of any consumer credit licence which the individual has in place or of any exemption claimed by him or her from the requirement to possess or be covered by such a licence (as the case may be), or, if none, how the individual proposes to secure that he or she has in place, or is validly covered by, a consumer credit licence;

(j) details of any public liability or personal indemnity insurance which the individual has in place, or, if none, how the individual proposes to secure that he or she has in place, or is validly covered by, appropriate public liability or personal indemnity insurance;

(k) copies of—

(i) documents confirming the individual’s name, address and date of birth;

(ii) material relating to the educational, training and development experience referred to in sub-paragraph (h);

(iii) material relating to the individual’s professional or other qualifications.

(2) In this regulation, “relevant body” means a body concerned with the regulation of persons who provide or ensure the provision of debt management or debt counselling services.

(3) The application may be accompanied by further information in support of the application; and the competent authority may request the individual to supply further information or evidence.

Procedure for withdrawal of approval to act as intermediary

10.—(1) A competent authority shall withdraw an approval to act as intermediary from any individual—

(a) where the individual so requests or with the individual’s consent;

(b) where it becomes clear to the competent authority after approval that the individual—

(i) was ineligible at the time of approval, or

(ii) has become ineligible for approval;

(iii) is at any time not or no longer a fit and proper person to act as intermediary;

(iv) has failed to comply with any provision of Part 7A of the Order or any rule, regulations or orders made under it, including these regulations;

(v) has furnished the competent authority with any false, inaccurate or misleading information.

(2) The competent authority may from time to time request an approved intermediary to supply such information or evidence about that intermediary or his or her activities as may be required by that authority for the purpose of ensuring that the requirements of these Regulations are being met.

Sealed with the Official Seal of the Department of Enterprise Trade and Investment on 21st January 2011

Michael J Bohill

A senior officer of the Department of Enterprise Trade and Investment