Insolvency Support Services obtains Cyber Essentials certification

Insolvency Support Services is pleased to have achieved certification under the Cyber Essentials scheme.

Jointly developed by the UK Government and the cyber security industry, Cyber Essentials helps organisations implement essential levels of protection against cyber attacks, demonstrating that they take cyber security seriously.

Thanks very much to Diddo for their expertise and support in helping us complete the assessment and facilitating the certification process.

What are your views on the new moratorium and restructuring provisions in the Corporate Insolvency and Governance Act?

Insolvency Support Services (ISS) is conducting research among stakeholders in the UK insolvency market on the new moratorium and restructuring provisions in the Corporate Insolvency and Governance Act.

We are gathering views on the likely usage of the provisions and the potential benefits as well as the reasons why they might not be used.

Please take part in the survey by clicking here before 24 July 2020.

If this link does not work for you, please cut and paste this url into your browser: https://www.surveymonkey.co.uk/r/ISSyourview

This survey should take less than five minutes to complete. All responses will be treated confidentially.

All respondents will receive a summary of the findings and be entered into a prize draw for the chance to win a free ISS webinar as well as a £50 voucher for an online retail store of the winner’s choice.

Please note that the survey will be temporarily unavailable from 8.00 am–8.00 pm on 3 July.

If you have any questions, please email enquiries@insolvencysupportservices.com

Webinar – Corporate Insolvency and Governance Act 2020: An Introduction

In our One Hour Series webinar Technical Short: Corporate Insolvency and Governance Act 2020: An Introduction on 17 July we will summarise the changes and how they might be applied by the profession. Click here to book.

Monitor’s fees under the Corporate Insolvency and Governance Act

Alison Curry examines the detail around monitor’s fees in the new moratorium provisions.

The new moratorium process outlined in the Corporate Insolvency and Governance Act has now come into effect, bringing a very welcome 40 or more days’ breathing space for companies while they and their professional advisers consider their restructuring options.

Thanks to campaigning from the profession, in particular R3, the Act has seen some shift from the original proposals first outlined in 2017, not least that the monitors of these moratoria must be licensed insolvency practitioners. Had this not been the case, it could have seriously eroded the vital role that insolvency professionals play in corporate restructuring, and we should be grateful to all those who campaigned.

The perennial issue

We will be constructing document packs and checklists now that the legislation has come into force and rolling out our compliance support and training offering. But as with any new legislation, the devil is invariably in the detail, and some of the detail raises concern, particularly around the perennially thorny issue of IP fees.

The monitor must be an IP and the monitor is expressly stated to be an officer of the court. However, while SIP 9 currently applies to “all forms of proceedings under the Insolvency Act”, it expressly refers to the fees of an insolvency office holder, and a monitor may not fall into that category. SIP 9 could usefully be amended to clarify this ambiguity and the current consultation on the revision of this SIP would be an opportunity to do so.

But even if the monitor’s fees are to be subject to SIP 9, what of their fees for advising the company and forming their opinion, prior to their formal appointment as monitor? Here the position becomes less clear.

Entering the moratorium gives the company a payment holiday from most of its pre-moratorium debts, subject to some exceptions. A key exclusion for obvious reasons is the remuneration and expenses of the monitor. However, the provision goes on to state that “the monitor’s remuneration or expenses does not include remuneration in respect of anything done by a proposed monitor before the moratorium begins”; so it would seem that any pre-appointment charges in relation to formulating the very opinion that kickstarts the moratorium are potentially subject to the payment holiday. IPs will, therefore, need to ensure that their engagement letters are very clear about what exactly the monitor’s fees include.

There are then restrictions on the company in making payments during the moratorium period in respect of pre-moratorium debts which are subject to a holiday, to the greater of £5,000 or 1% of its debts, subject to the monitor giving their permission for higher amounts to be paid. Could this place IPs in a rather conflicted position in giving permission to discharge their own pre-appointment costs?

Super-priority

But what if the monitor’s fees aren’t paid at all? The newly inserted sections 174A and SchB1 para 64A give super-priority to moratorium debts (i.e. those incurred during the moratorium period) and pre-moratorium debts for which no payment holiday is granted (i.e. the monitor’s fees). This super-priority applies in any succeeding winding up or administration proceedings commenced in the 12 weeks following the end of the moratorium. Further, a new s4A provides that any proposal for or modification to a CVA under which both the moratorium debts and the pre-moratorium debts for which the company did not have a payment holiday are to be paid other than in full is prohibited. So, it seems that the monitor will be paid ahead of any subsequently appointed office holder and IPs will need to check that there is not a prior monitor ranking ahead of them when taking a new instruction.

It appears that the only parties capable of challenging the monitor’s fees are a subsequently appointed liquidator or administrator and that challenge involves an application to court, which could be costly, and assumes an alternative IP in the succeeding role. Additionally, while the moratorium is in force, only the directors can instigate the winding up of the company or seek to appoint an administrator, so they get to choose their IP if that rescue proves impossible.

So, what if the monitor, on the evidence now available to them, changes their view about the viability of the company and recommends that the directors take steps to place it into liquidation or administration? The newly revised Ethics Code contains enhanced provisions around the potential conflicts presented by sequential appointments, but by no means precludes them. Nor does the new legislation.

Therefore, might we see the birth of the post-moratorium pre-pack, once it has become evident that the business, rather than the company can be saved, thereby justifying a shift from moratorium into administration? In some cases, no doubt this would be entirely justified, but the lack of external oversight in respect of fees may create the potential for abuse (both actual and perceived).

An amendment to the bill proposing the insertion of a new paragraph 74A into Schedule B1, requiring the use of the pre-pack pool in all pre-pack scenarios was withdrawn at committee stage, so it would seem that the pre-pack will survive unscathed into the new era of moratoria.  Much will rest on the shoulders of IPs to use these new tools responsibly, and in the longer term, more will rest on the shoulders of regulators to ensure that they do so.

What are your views on the new moratorium and restructuring provisions?

Click here to take part in our short survey. It should take less than five minutes to complete. As well as receiving a summary of the findings, you will be entered into a prize draw for the chance to win a free ISS webinar and a £50 voucher to an online retail store. The survey will end on 24 June 2020. Please note that the survey will be temporarily unavailable from 8.00 am–8.00 pm on 3 July.

First published in the June 2020 edition of RECOVERY NEWS and reproduced with the permission of R3 and GTI Media.

Webinar – Corporate Insolvency and Governance Act 2020: An Introduction

In our One Hour Series webinar Technical Short: Corporate Insolvency and Governance Act 2020: An Introduction on 17 July we will summarise the changes and how they might be applied by the profession. Click here to book.

Alison Curry elected to R3’s National Council

We are delighted to announce that Insolvency Support Services director Alison Curry has been elected to the National Council of insolvency and restructuring trade body R3. The Council, comprising senior professionals from across the profession, plays a vital role in the strategic decision-making process of R3.

With Alison’s election confirmed at R3’s AGM on Friday 24 April, fellow Insolvency Support Services director Eileen Maclean commented: “We are very proud indeed that Alison has been elected to serve in this important position with R3. She brings an exceptional wealth and depth of insolvency expertise and practical experience to the role.”

Having joined Insolvency Support Services in 2018, Alison provides a range of compliance, training, outsourcing and practice support services to clients throughout the UK. An engaging public speaker and trainer, she specialises in the practical application of insolvency law and regulation and the drafting of regulatory guidance. Prior to joining Insolvency Support Services, Alison was Head of Regulatory Standards & Support at the Insolvency Practitioners Association.

Alison said: “As a career insolvency practitioner who believes passionately in the value of the work the profession undertakes and the need to support that work, I’m excited to be joining R3’s National Council. R3 will play an essential role in supporting the insolvency profession as we help businesses cope with the effects of the COVID-19 pandemic. As an R3 Council member, I am looking forward in particular to bringing my first-hand experience of both the demands of working in a small practice and the machinery of the regulatory arena to the role.”

Insolvency in the time of coronavirus

Eileen Maclean outlines the challenges of COVID-19 for insolvency practitioners.

We are used to dealing with emergencies with no notice – we are IPs after all – but the speed of response demanded from the business community by the outbreak of coronavirus was unprecedented. Vast numbers of us now work from home and are finding new and innovative ways to manage our cases and deal with our clients and contacts. At the heart of the solution is IT – but IT cannot replace every aspect of an IP’s role. In this month’s article I consider some of the challenges for IPs in this time of coronavirus and how we can help you.

New appointments and AML risks

One of the first things we were asked was can we still take appointments where we have not met the directors in person? We think the answer is yes – but there are a couple of things to note. Firstly, you need to be aware of the AML risk since you are not meeting the directors in person. Adjust your AML policies and procedures accordingly and record this new channel and the risks it poses, if this is a new process for your business. If you are using an online verification tool, the risk is lessened, but make sure that you keep identification under review and check that you are not inadvertently enabling money laundering, the burial of some dubious pre-insolvency activity or giving advice without fully understanding the problems facing the business. Secondly, only if you or your agent must, and it is safe to do so having taken the necessary precautions in line with government advice, visit the premises, and make sure that they are subject to appropriate security measures, in line with your insurer’s requirements.

Advice to directors

The wrongful trading provisions may have been suspended for a period of three months as an eye-catching policy response to the difficulties of running a company in these unprecedented times, but directors are not completely off the hook. Misfeasance provisions in terms of section 212 remain firmly in place, and nothing alters your responsibility to quantify the director’s loan account, examine inter-company or related party transactions or transactions at undervalue or in preference. Your advice to directors at this time needs to reflect that. Unfit conduct is not going to go away, and you need to remind them your obligation to review and investigate will continue. We have a new checklist Investigations and CDDA and two supporting online sessions: Pre-appointment advice to directors and SIP2 and Investigations, which you can purchase separately or as a package with a discount.

Moratorium and other rescue provisions

At the time of writing, we have yet to see a draft of the UK government’s moratorium and rescue proposals although we expect them to build on the BEIS response to the Insolvency and Corporate Governance consultation. That contains proposals for a new moratorium to assist business rescue, the prohibition of termination clauses on the grounds of insolvency and a new restructuring process that will allow cross cram-down onto secured and/or unsecured creditors. As always, the devil will be in the detail, and the speed at which it is likely to be introduced. In the meantime the profession, supported by the courts, finds faster, inventive approaches to retail and high street casualties with a ‘light touch’ administration appointment in Debenhams.

Reputational risk

The sun will set in 2022 on the single regulator provisions introduced by SBEE Act 2015 following a review of the regulatory landscape. There is no indication at the moment what the government response to the formal consultation might have been pre-pandemic, but our approach in these dramatic times may well dictate whether we retain the privilege of self-regulation in the future.

The revised Insolvency Ethics Code was published at the start of the year and comes into effect on 1 May 2020. You can get to grips with the changes in our online session. Insolvency and IPs have not been far from the headlines in recent years, and we are headlining again now, big time. Our approach, our fees and our conduct are centre-stage of press, public and government scrutiny and one of our biggest challenges in these times is managing and protecting our collective professional reputation. The introduction of our new ethics code is uncannily well-timed.

COVID-19 our response

And therefore, to assist you in these times, we have prepared a free-to-view video: COVID-19: An Insolvency Practitioner’s Risk and Response. It covers dealing with employees – your and your cases’ workforce – risks and challenges presented by working from home, contributions management, protecting estate funds and assets, and meeting your statutory obligations.

Preferential status for HMRC

Following my February article on the return of preferential status for HMRC, due originally to commence on 6 April 2020, it is marginally gratifying to see the provision has been delayed until late 2020. We can’t predict at this stage HMRC’s overall exposure to lost revenue (but we know it will be a lot) or what their approach will be to collections (but we can guess) and in light of the widespread expected increase in numbers of insolvencies, whether they will be geared up to exercise their role as preferential creditor in a significantly higher number of insolvencies than a benign economic environment would produce (we can only hope).

Conclusion

We are always here to assist and protect your business. Please get in touch if we can help.

In the meantime, stay safe in these challenging times.

First published in the April 2020 edition of RECOVERY NEWS and reproduced with the permission of R3 and GTI Media.

Brand new Investigation and CDDA Checklist

We now have an Investigation and CDDA checklist, intended for use by IPs and their staff dealing with investigations into company director conduct, recovery and disqualification.  Applying across insolvent liquidation, administration and receivership, the checklist reflects current insolvency and CDDA legislation and all statutory references are hyperlinked to the relevant sections.  

The checklist retails for £500 (ex VAT).

There are two supporting online sessions: Pre-appointment advice to directors and SIP2 and Investigations, which normally retail for £50 (ex VAT) per participant.  One single use registration of each online session will be included with the purchase of the checklist for a limited period of time.  For two or more registrations to each session, please speak to us directly.

Coronavirus: An IP’s Risk and Response

Our job at Insolvency Support Services is to support your business. We have produced this short, free to view online presentation to assist and protect your practice as you deal with the exceptional circumstances of COVID-19.  We’ve considered the risks for your insolvency practice, and suggested practical responses and strategies for addressing these.

We have also set out below how we can assist you to meet these challenges. Please contact us at enquries@insolvencysupportservices.com if we can help in any way.

Documentation and Policies

Revised policies and protocols for contribution management

Working from home policy

Data Processing Impact Assessment

Data Protection policies and registers
Online Learning

AML2020 update

Compliance Awareness Online Learning covering: GDPR, AML, Ethics and Vulnerability – ideal introductions to staff new to insolvency or looking for a refresher of these subjects

Social Media on Appointment

Foundations in Insolvency
Outsourcing

Case Reviews

Case Closure

Case Progression and annual reports

Current Guidance  

For reference, following are links to the latest guidance from AiB and IPA.


AiB – COVID-19 – Contingency Arrangements

IPA – Insolvency Guidance Papers: Control of cases

Covid-19: Important information for IPA members

Business Continuity Statement (17 March 2020)

We would like to update you on our approach to service delivery in light of the current situation and Government advice. We appreciate that these are uncertain times for everyone, but as a team we remain open for business and can be reached in the usual way. We will continue to support your business and maintain continuity of services wherever possible.

ISS Training

Here at ISS, we are used to agile working. GoToMeeting allows us to meet with you remotely and our recent investment in online training provision means that our training courses continue to be accessible across a number of platforms. Our online courses are hosted on GoToWebinar or our Moodle School platform: www.isstraining.moodle.school and we will be adding more online resource over the coming weeks. Let us know if you have a particular requirement.

We will be in touch with everyone that has a pre-existing face-to-face course booking to discuss options. Up to date details of all our rescheduled courses can be found on our website at: https://insolvencysupportservices.com/iss-training

CPI/CPPI/JIE

If you are an exam student, we will be in touch with you separately regarding arrangements for your training.

Should you have any questions or queries, please do get in touch. We very much appreciate your continued support of our business.

In the meantime, we hope that you stay well, and we wish you and your families the very best at this difficult time.

Eileen Maclean
Director

Celebrating International Women’s Day 2020

Today, on International Women’s Day (8 March 2020), we celebrate the achievements of all women, with a special mention for our outstanding colleagues, clients and contacts here at Insolvency Support Services. An equal world is an enabled world.

 

New Practice Management Workshops

Insolvency Support Services is delighted to launch our new Practice Management Workshops. A brand-new training stream, our workshops are designed to keep you up to date with your regulatory requirements. The programme will help you build or improve an efficient, robustly compliant insolvency practice in a cost-effective manner.

This stream is intended for insolvency practitioners (particularly sole practitioners or SME businesses), those considering obtaining their insolvency licence or setting up in practice, and anyone responsible for internal compliance processes or with an interest in the subject matter.

There are five workshops to attend or choose from, running in London, Birmingham and Edinburgh throughout 2020:

• Practical AML Policies and Procedures
• Financial Controls and Annual Compliance Statements
• Data Privacy and Cyber Crime Prevention Policies
• Avoiding Discrimination and Making Adjustments to Services
• PII, Bonding and Insurance considerations

Attend all five and pay for just four workshops or choose the workshops that meet your practice’s needs, in the venue that’s most convenient for you.

For full details of each workshop, click here.

CPD Learning Outcomes

• Keep up to date with current regulatory requirements
• Learn how to build or improve an efficient, robustly compliant practice
• Cost effectively implement statutory and regulatory requirements into your business
• Reduce your practice’s risk profile

Cost

Each half day workshop: £155 + VAT

Book three workshops and get our usual 50% discount on the third workshop: £387.50 + VAT

Book four workshops for just £527 + VAT

Book all five workshops and get five for the price of four: £620 + VAT

Bespoke In-House

We can also run this training in-house for your team. This is a cost-effective option for larger practices. Contact us to discuss available dates and requirements.

Half day course: £975 + VAT

Full day course: £1,950 + VAT