The Care and Support (Business Failure) Regulations 2015

Business failure

2.—(1) For the purposes of sections 48 and 50 to 52 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 a regulated activity(1) or to carry on or manage an establishment or 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(2) or paragraph 2(1) of Schedule B1 to the 1989 Order(3)) takes effect;

(b) a receiver is appointed;

(c) an administrative receiver as defined in section 251 of the 1986 Act(4) 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)(5) 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)(6) 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 adjudged bankrupt; or

(j) a voluntary arrangement proposed for the purposes of Part 1 of the 1986 Act(7) 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 adjudged bankrupt; or

(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.

(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.

(1)

See section 8 of the Health and Social Care Act 2008 (c.14) for the meaning of “regulated activity”.

(2)

Schedule B1 was inserted by section 248(2) of, and Schedule 16 to, the Enterprise Act 2002 (c.40). As to the application of Part 2 of the 1986 Act to co-operative and community benefit societies, see S.I. 2014/229 as amended by S.I. 2014/1822.

(3)

Schedule B1 was inserted by S.I. 2005/1455 (N.I. 10).

(4)

There are amendments to section 251 but none is relevant.

(5)

S.I. 1994/2421.

(6)

S.R. (N.I.) 1995 No. 225.

(7)

As to the application of Part 1 of the 1986 Act to co-operative and community benefit societies, see S.I. 2014/229 as amended by S.I. 2014/1822.