1.4 Status and functions
Official receivers are appointed, removed and act under the general direction of the Secretary of State for BIS. On appointment the official receiver becomes simultaneously a statutory office holder and a civil servant employed by The Service.
Notes: [s399] [s401(4)]
The official receiver’s duties as a statutory office holder are largely set out in the Insolvency Act 1986. He/she may have additional functions conferred on him/her by the Secretary of State. On an operational level, as a public servant the official receiver complies with any directions, instructions and guidance issued by The Service’s Inspector-General and Agency Chief Executive (the Inspector-General).
An example of the distinction between when the official receiver acts as a statutory office holder and when he/she acts as a civil servant is when he/she sends to a company director or bankrupt a Preliminary Information Questionnaire and an appointment letter to attend for interview. The official receiver does this as part of his/her statutory investigatory duty under section 132 or section 289. However, when sending leaflets to aid the recipient (e.g. ‘What happens when you attend the official receiver’s office’ and ‘A guide to bankruptcy’ or a ‘Guide to directors’) the official receiver is acting as a civil servant.
The official receiver’s primary function is to administer and investigate the affairs of companies and partnerships wound up by the court and of bankrupts, with a view to the taking of appropriate and timely action where there is evidence of offences or unfit conduct (see Part 4).
He/she carries out various other duties in liquidations and bankruptcies, including the initial discovery and protection of assets. He/she will act as liquidator of a company or trustee of a bankrupt’s estate if no private sector insolvency practitioner is appointed and as liquidator/trustee ex officio if there is a vacancy in that office. The official receiver remains under a duty to investigate when a private sector insolvency practitioner has been appointed as liquidator or trustee.
With effect from 6 April 2010 the term ‘office-holder’ is defined by the Rules as any person who by virtue of any provision of the Act or Rules holds an office in relation to insolvency proceedings.
The Insolvency Act 1986 introduced the concept of licensed, i.e. qualified, insolvency practitioners. The official receiver does not have to be qualified to act as an insolvency practitioner.
An assistant/deputy official receiver literally assists or deputises for an official receiver, and may act as liquidator or trustee. The Secretary of State appoints assistant/deputy official receivers from The Service. On appointment, the assistant/deputy official receiver is simultaneously a statutory office holder and a civil servant employed by The Service (see paragraph 1.4EA).
A person may be temporarily appointed as deputy official receiver for all the cases in an insolvency district, e.g. to cover an official receiver’s absence through illness.
One official receiver may be appointed deputy for another if it means a case will be more conveniently administered, but the case will normally be transferred to the deputy’s court thereby bringing the deputyship to an end (see paragraph 1.8).
The official receiver is not expected to carry out all his/her duties personally, and at times will authorise members of his/her staff to act in his place, e.g. to act as chairman at a meeting of creditors. Where the nominee is not another official receiver or a deputy official receiver, the authorisation must be in writing (which can include electronic form). The Secretary of State may similarly authorise staff, for example where the official receiver is for some reason not physically able to do so. The nominee needs the court’s prior permission to act in any public or private examination or court application. Preferably, though not necessarily, permission to act should be obtained in good time before any proceedings.
Notes: [r10.2, r4.55(2), r6.82(1), s133, 236, 290 or 366] [r12A.10, 12A.1, s436B]
Official receivers may be appointed and removed from office by the Secretary of State, who is responsible for their terms and conditions of employment.
An official receiver may not profit from his appointment, and all fees payable to him for work done are paid to the Secretary of State.
Each official receiver is attached to either the High Court (in London or a District Registry) or to a County Court with insolvency jurisdiction. He/she may, and outside London normally will, be attached simultaneously to more than one court. It is the responsibility of the Secretary of State to attach official receivers to the various courts having insolvency jurisdiction. Every court must have at least one official receiver attached to it. The official receiver attached to a court is the only person who can act as official receiver in any winding up or bankruptcy within the jurisdiction of that court, unless another official receiver is authorised to do so by the Secretary of State. Where a case is transferred from one court to another, the official receiver of the recipient court replaces the official receiver of the transferring court. Pending, or instead of, the transfer of a case, an official receiver in one court may be appointed deputy to an official receiver in another (see paragraph 1.6).
Notes: [form ORA]
The official receiver acts under the general guidance of the Secretary of State. The Insolvency Service Headquarters acts as the Secretary of State's representative in this respect.
Advice and guidance is generally available to the official receiver from headquarters, e.g.:
The official receiver, as a statutory office holder, has a discretion on how to carry out his/her functions and how to manage the insolvency estate (see section 305(2) of the Insolvency Act 1986, for example).
This ‘Technical Manual’ is intended to be a guide to best practice to be followed by official receivers except when circumstances, including those of an individual insolvency case, dictate or merit otherwise. Where the ‘Technical Manual’ is departed from, this should be as a result of reasoned decision taken by the official receiver which is recorded either centrally or in the individual case record (including the Case Assessment Record (see chapter 15.43, for example)).