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The Care and Support (Business Failure) (Wales) Regulations 2015

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Title, commencement, application and interpretation

1.—(1) The title of these Regulations is the Care and Support (Business Failure) (Wales) Regulations 2015 and they come into force on 6 April 2016.

(2) These Regulations apply in relation to Wales.

(3) In these Regulations—

the Act” (“y Ddeddf”) means the Social Services and Well-being (Wales) Act 2014;

“the 1986 Act” (“Deddf 1986”) means the Insolvency Act 1986(1);

“the 1989 Order” (“Gorchymyn 1989”) means the Insolvency (Northern Ireland) Order 1989(2);

“a members’ voluntary winding up” (“achos o ddirwyn i ben yn wirfoddol gan yr aelodau”) means a winding up where a statutory declaration has been made under section 89 of the 1986 Act or article 75 of the 1989 Order(3);

“a provider” (“darparwr”) means a person registered under Part 2 of the Care Standards Act 2000(4) in respect of an establishment or agency;

“the relevant amount” (“y swm perthnasol”) means the amount specified in section 123(1)(a) of the 1986 Act (definition of inability to pay debts).

Business failure

2.—(1) For the purposes of sections 189 and 191 of the Act—

(a)business failure has the meaning given in paragraphs (2) to (5); and

(b)a provider is to be treated as unable to carry on or manage an establishment or an agency because of business failure if the provider’s inability to do so follows business failure.

(2) Where a provider is not an individual, business failure means that, in respect of that provider—

(a)the appointment of an administrator (within the meaning given by paragraph 1(1) of Schedule B1 to the 1986 Act(5) or paragraph 2(1) of Schedule B1 to the 1989 Order(6)) takes effect;

(b)a receiver is appointed;

(c)an administrative receiver as defined in section 251 of the 1986 Act or article 5 of the 1989 Order is appointed;

(d)a resolution for a voluntary winding up is passed other than in a members’ voluntary winding up;

(e)a winding up order is made;

(f)an order by virtue of article 11 of the Insolvent Partnerships Order 1994 (joint bankruptcy petition by individual members of insolvent partnership)(7) is made;

(g)an order by virtue of article 11 of the Insolvent Partnerships Order (Northern Ireland) 1995 (joint bankruptcy petition by individual members of insolvent partnership)(8) is made;

(h)the charity trustees of the provider become unable to pay their debts as they fall due;

(i)every member of the partnership (in a case where the provider is a partnership) is made bankrupt; or

(j)a voluntary arrangement proposed for the purposes of Part I of the 1986 Act(9) or Part 2 of the 1989 Order has been approved under that Part of that Act or Order.

(3) In relation to a provider who is an individual, business failure means that—

(a)the individual is made bankrupt;

(b)a voluntary arrangement pursuant to Part 8 of the 1986 Act or Part 8 of the 1989 Order is proposed by or entered into by the individual; or

(c)a debt relief order is made under Part VIIA of the 1986 Act or Part 7A of the 1989 Order(10).

(4) For the purposes of paragraph (2)(h), a person is a charity trustee of a provider if—

(a)the provider is a charity that is unincorporated; and

(b)the person is a trustee of that charity.

(5) For the purposes of paragraph (2)(h), the charity trustees of a provider are to be treated as becoming unable to pay their debts as they fall due if—

(a)a creditor to whom the trustees are indebted in a sum exceeding the relevant amount then due has served on the trustees a written demand requiring the trustees to pay the sum so due and the trustees have for 3 weeks thereafter neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor;

(b)in England and Wales, execution or other process issued on a judgment, decree or order of a court in favour of a creditor of the trustees is returned unsatisfied in whole or in part;

(c)in Scotland, the induciae of a charge for payment on an extract decree, or an extract registered bond, or an extract registered protest, have expired without payment being made; or

(d)in Northern Ireland, a certificate of unenforceability has been granted in respect of a judgment against the trustees.

Mark Drakeford

Minister for Health and Social Services, one of the Welsh Ministers

18 November 2015

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