July 2010
12.2 Official receiver’s discretion
In a winding up by the court the official receiver has discretion as to whether or not to require a statement of affairs [Note 1], but a person made bankrupt on a creditor’s petition or the petition of a supervisor of an individual voluntary arrangement is obliged to submit a statement of affairs [Note 2] unless the official receiver, or the court, releases him/her from that duty [Note 3] (see paragraphs 12.10 – 12.12).
Where a debtor files his/her own bankruptcy petition, he/she has a duty to lodge a statement of affairs with the petition [note 4] and in such a case the official receiver should not be involved in its preparation. Consequently, paragraph 12.4 does not apply to debtor’s own petition cases.
An official receiver acting as deputy for an official receiver at another court has all the powers and status of the official receiver for whom he/she acts and should decide for him/herself whether to impose a duty to file a statement of affairs.
From 6 April 2010, the term “deponent”, which previously appeared throughout the rules, has been replaced by “nominated person” and “person making the statement of affairs” “Nominated persons” are defined in rule 4.32(3) [note 5] as the persons to whom notice requiring the submission of a statement of affairs under section 131 of the Act is sent.
12.4 Preparing a statement of affairs
It is not expected that the basic work of preparing a statement of affairs is to be completed in conjunction with the examiner or person administering the case, unless in exceptional circumstances it is considered necessary, e.g. the person is illiterate and has no one else to assist him/her.
12.5 Acknowledgement of assistance
Where a member of the official receiver’s staff gives guidance in the preparation of a statement of affairs, he/she should ensure that the nominated person or the bankrupt acknowledges in writing (form SAAKAS) that guidance has been given, but that the statement has been completed based on information which the nominated person or bankrupt has provided and that the nominated person or bankrupt accepts full responsibility for the contents of the statement. The acknowledgement (form SAAKAS) should be attached to the statement of affairs and a copy of it should be attached to the official receiver’s copy of the statement of affairs.
12.6 Verifying a statement of affairs
With effect from 6 April 2010, a statement of affairs or statement of concurrence does not have to be verified and sworn by affidavit. The affidavit on the statement of affairs forms has been replaced by a statement of truth. The affidavit of concurrence has been replaced by a statement of concurrence verified by a statement of truth (form SACONC).
NOTE: Due to the updating and restructuring of the advice and guidance in this part as a result of the modernisation of the Rules, paragraphs 12.7 and 12.8 have been omitted but changes have not been made to the existing paragraph numbering in this chapter.
12.9 Examination of statement of affairs
The statement of affairs should, on its receipt, be checked for obvious inaccuracies and omissions and should be tested against the information in the inspection report, preliminary information questionnaire, the company’s or bankrupt’s records, proofs of debt and notifications of claims. Material discrepancies should normally be referred back to the person who made the statement of affairs at an early date for explanation and, in serious cases, the official receiver should require further information or accounts from them (see Part 5 of this chapter for further details). As a last resort, the person who made the statement of affairs may be called for public examination. Where material discrepancies exist, the official receiver should consider whether there is the possibility of an offence relating to misconduct in the proceedings or a material omission in the statement of affairs e.g. sections 208, 210, 353, 354 or 356. If the official receiver is considering an offence of concealment or non-disclosure, the statement of affairs can be used notwithstanding the European Court of Human Rights judgment in Saunders [1997] BCC 872 (see also paragraph 12.40). In addition where a bankrupt has failed to comply with his/her obligations in relation to the statement of affairs, the official receiver should consider applying to the court for the running of the automatic discharge period to be suspended (see chapter 22 for further details).
In cases where the debtor petitions for his/her own bankruptcy (see paragraph 12.49) it is the court clerk’s responsibility to ensure that the debtor has answered every question in the statement of affairs but not to check the contents of the statement of affairs. If the statement of affairs does not contain sufficient information, the official receiver should consider asking the bankrupt to complete another full statement of affairs. The forms are available at www.insolvency.gov.uk/forms/forms.htm.
12.10 Release from duty to submit statement of affairs (company cases)
It should not normally be necessary for the official receiver to consider the release of the nominated persons from the requirement to lodge a statement of affairs, [Note 6] (form SARE) as notice requiring submission should only have been served after the decision has been made in the Case Assessment Record (CAR) that a statement of affairs is required. The discretion to release from the requirement is a wide one and may be exercised even where there has been no material change in circumstances. In addition, circumstances may change or arise, e.g. ill health of the nominated person, which will cause the official receiver to alter his/her initial view whereupon he/she may release the nominated person from an obligation to submit a statement of affairs or grant an extension of the time for a nominated person to submit the document. If the official receiver decides to grant a release, he/she should inform the nominated person in writing. Written notification is also advisable when agreeing to an extension of time, as enforcement proceedings to secure submission might subsequently be necessary. Written notification can include electronic delivery provided that the recipient has consented to electronic delivery and provided an electronic address for delivery.
12.11 Release from duty to submit statement of affairs (bankruptcy only)
The bankrupt (except one who has been made bankrupt on his/her own petition) has a duty to submit a statement of affairs within 21 days of the making of the bankruptcy order. The official receiver may choose to release a bankrupt from the requirement to submit a statement of affairs and should consider releasing the bankrupt from this obligation where its submission is impracticable or would not materially assist his enquiries [Note 7] [Note 8]. The official receiver should send notice to the bankrupt that he has been released from this obligation (form SARE). As soon as reasonably practicable the official receiver should then send a report to creditors containing a summary of the bankrupt’s affairs as far as he is aware of them, together with any observations which the official receiver has on it or on the bankrupt’s affairs generally. The official receiver need not send a further report if he/she has previously reported to creditors in respect of the bankrupt’s affairs and he/she is of the opinion that there are no additional matters which ought to be brought to their attention [Note 9] [Note 10].
12.12 Request for release or extension of time
The official receiver should generally ask that any request by a nominated person or the bankrupt for an extension of time, or a release, should be made in writing to him/her stating the reasons why this is required. The official receiver may then choose to grant or refuse the request, but if he/she refuses, the nominated person or the bankrupt may apply to the court for an extension or release. The onus is on the nominated person or the bankrupt to take positive action [Note 11] [Note 12] if he/she believes that there are good reasons for his/her not being able to comply with his/her obligations.
Ill health is one example of what may be considered to constitute a reasonable excuse for failure to submit a statement of affairs, and the official receiver may release the nominated person or the bankrupt from the requirement to submit a statement of affairs. Other circumstances may also justify release.
The official receiver should give a brief written notification to the nominated person or the bankrupt as to the grounds on which he/she is unwilling to accept his/her request for release or extension of time. Although there is not a specific requirement to do so, the official receiver should give reasons on the grounds of fairness.
12.15 Application to the court
The court may, if it thinks that insufficient reason has been given for the application, dismiss the application of the bankrupt or nominated person , but the applicant must have been given the opportunity to attend a hearing (and receive at least 5 business days notice of the hearing) [note 13] [note 14]. If the court decides not to dismiss the application immediately, it will fix a date for a hearing and the nominated person or the bankrupt is required to provide the official receiver with a copy of the application and supporting evidence, at least 14 days before the date of the hearing [note 15] [note 16]. The official receiver may be heard on the application and he/she should normally attend the hearing and/or file a written report of any matters which he/she considers ought to be drawn to the court’s attention [note 16A] [note 16B].
The nominated person’s or the bankrupt’s costs of the application must be paid by him/her, but the court may order their reimbursement out of the estate [Note 17] [Note 18].
12.16 Official receiver’s report
The official receiver may file a report in relation to the application, whether or not he/she appears at the hearing (form SALEX). Any such report should set out the reasons for the official receiver’s refusal to grant a release or an extension of time and should seek to rebut the evidence which the nominated person or the bankrupt intends to use in support of his/her application. A copy of the report must be sent to the nominated person or the bankrupt not later than 5 business days before the hearing [Note 19] [Note 20] .
12.17 Limited disclosure of statement of affairs
On rare occasions it may be that the disclosure of certain information contained in a statement of affairs will prejudice the possibility of advantageous realisations (e.g. valuations placed on specialist equipment which is in the course of being sold), or might reasonably be expected to lead to violence against any person. The official receiver may apply to the court for an order (form SALD) that the whole or relevant part of the statement of affairs is not filed with companies house (in company cases) or not filed with the court (in bankruptcy cases). In bankruptcies the order may be that the statement or the specified part of it be filed separately so that it is not open to public inspection without the permission of the court [Note 21] [Note 22]. It is not expected that the official receiver will often find it necessary to make use of this provision. The provisions for winding up and bankruptcy mirror those for administrations and administrative receiverships, where they are more likely to be used to protect the value of a business which is being sold as a going concern.
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