SCHEDULE 1Fit and proper persons requirement

Regulation 8

1.

(1)

In this Schedule—

“arrangement” means a voluntary arrangement entered into by an individual with their creditors;

“the Bankruptcy Act” means the Bankruptcy (Scotland) Act 201626;
“the Insolvency Act” means the Insolvency Act 198627;
“the Insolvency Order” means the Insolvency (Northern Ireland) Order 198928;

“the registrar of companies” has the meaning given by section 1060(3) of the Companies Act 2006.

(2)

In paragraph 2(a)—

“adjudicator” has the meaning given by section 385(1) of the Insolvency Act29;
“creditor” has the meaning given by section 383(1) of the Insolvency Act30.

(3)

In paragraph 2(b)—

“the Accountant in Bankruptcy” has the meaning given by section 199(1) of the Bankruptcy Act;

“creditor” has the meaning given by section 383(1) of the Insolvency Act;

“debtor application” has the meaning given by section 228(1) of the Bankruptcy Act;

“sequestration” has the meaning given by section 1 of the Bankruptcy Act.

(4)

In paragraph 2(c)—

“bankrupt”, “bankruptcy order” and “bankruptcy petition” have the meanings given in Article 9(1) of the Insolvency Order;

“the court” is defined in rule 0.2 of the Insolvency Rules (Northern Ireland) 199131;

“creditor” has the meaning given in Article 9(1) of the Insolvency Order.

2.

For the purposes of section 11(3)(a) of the Act (fit and proper persons requirement), the Regulator must take into account the following matters when assessing whether a person is fit and proper to act in a capacity mentioned in section 11(2) of the Act—

(a)

whether, in England and Wales, the person has—

(i)

made any arrangement with the person’s creditors;

(ii)

applied to an adjudicator under section 263H of the Insolvency Act32 (bankruptcy applications to an adjudicator) for a bankruptcy order within the meaning given by section 381(2) of the Insolvency Act33 (“bankrupt” and associated terminology);

(iii)

been served with a bankruptcy petition within the meaning given by section 381(3) of the Insolvency Act;

(iv)

been made bankrupt within the meaning given by section 381(1) of the Insolvency Act34;

(v)

been the subject of a bankruptcy restrictions order made under paragraph 1 (bankruptcy restrictions order) of Schedule 4A to the Insolvency Act35 (including an interim bankruptcy restrictions order made under paragraph 5 (interim bankruptcy restrictions order) of that Schedule); or

(vi)

offered a bankruptcy restrictions undertaking made under paragraph 7 (bankruptcy restrictions undertaking) of Schedule 4A to the Insolvency Act;

(b)

whether, in Scotland, the person has—

(i)

made any arrangement with the person’s creditors;

(ii)

made a debtor application to the Accountant in Bankruptcy for sequestration;

(iii)

been served with a petition for sequestration;

(iv)

been the subject of an award of sequestration in accordance with section 22 of the Bankruptcy Act (when sequestration is awarded); or

(v)

been the subject of a bankruptcy restrictions order within the meaning given by section 155(1) (bankruptcy restrictions order) of the Bankruptcy Act (including an interim bankruptcy restrictions order within the meaning given by section 160 (interim bankruptcy restrictions orders) of that Act);

(c)

whether, in Northern Ireland, the person has—

(i)

made any arrangement with the person’s creditors;

(ii)

petitioned the court for a bankruptcy order;

(iii)

been served with a bankruptcy petition;

(iv)

been adjudged bankrupt;

(v)

been the subject of a bankruptcy restrictions order made under paragraph 1 (bankruptcy restrictions order) of Schedule 2A to the Insolvency Order36 (including an interim bankruptcy restrictions order made under paragraph 5 (interim bankruptcy restrictions order) of that Schedule); or

(vi)

offered a bankruptcy restrictions undertaking made under paragraph 7 (bankruptcy restrictions undertaking) of Schedule 2A to the Insolvency Order;

(d)

whether the person has been a director37 or partner of, or otherwise concerned in the management of, a business that has gone into insolvency, liquidation or administration while the person was concerned with that business or within one year of their being so concerned;

(e)

whether—

(i)

in Great Britain, the person has been convicted of any criminal offence, excluding convictions that are spent within the meaning of the Rehabilitation of Offenders Act 197438; or

(ii)

in Northern Ireland, the person has been convicted of any criminal offence, excluding convictions that are spent within the meaning of the Rehabilitation of Offenders (Northern Ireland) Order 197839;

(f)

whether there has been a judgment against the person or the person has reached a settlement in civil proceedings, particularly in connection with investment or other financial business, misconduct, fraud or the formation or management of a body corporate;

(g)

whether—

(i)

in Great Britain, the person has been subject to a disqualification order under section 1(1) (disqualification orders: general), or a disqualification undertaking under section 1A(1) (disqualification undertakings: general) of the Company Directors Disqualification Act 198640; or

(ii)

in Northern Ireland, the person has been subject to a disqualification order under Article 3(1) (disqualification orders: general), or a disqualification undertaking under Article 4(1) (disqualification undertakings: general) of the Company Directors Disqualification (Northern Ireland) Order 200241;

(h)

whether the person has contravened any of the requirements or standards of—

(i)

a regulator, including the Regulator; or

(ii)

the registrar of companies42;

(i)

any information received from—

(i)

a regulator; or

(ii)

the registrar of companies;

(j)

the person’s conduct in relation to, or arising out of or in connection with, any work the person has carried out in one or more of the capacities mentioned in section 11(2) of the Act—

(i)

in the period of five years ending with the date of the application for authorisation of the scheme; and

(ii)

at any time since the date of the application for authorisation of the scheme;

(k)

whether—

(i)

in Great Britain, the person has been prohibited from being a trustee of any trust, including any trust scheme within the meaning of section 124(1) of the 1995 Act (interpretation of Part 1), under—

(aa)

section 3 of the 1995 Act43 (prohibition orders), or

(bb)

any other legislation; or

(ii)

in Northern Ireland, the person has been prohibited from being a trustee of any trust, including any trust scheme within the meaning of Article 121(1) of the Pensions (Northern Ireland) Order 199544 (interpretation of Part 2), under—

(aa)

Article 3 of the Pensions (Northern Ireland) Order 199545 (prohibition orders), or

(bb)

any other legislation;

(l)

whether—

(i)

in Great Britain, the person has been disqualified from being a trustee of any trust, including any trust scheme within the meaning of section 124(1) of the 1995 Act, under—

(aa)

section 29 of the 1995 Act46 (persons disqualified from being trustees), or

(bb)

any other legislation; or

(ii)

in Northern Ireland, the person has been disqualified from being a trustee of any trust, including any trust scheme within the meaning of Article 121(1) of the Pensions (Northern Ireland) Order 1995, under—

(aa)

Article 29 of the Pensions (Northern Ireland) Order 199547 (persons disqualified for being trustees), or

(bb)

any other legislation.

3.

For the purposes of section 11(3)(a) of the Act, the Regulator must take into account—

(a)

the knowledge and skills gained from a person’s significant experience as a trustee, in assessing whether the person is fit and proper to act in that capacity;

(b)

whether a person has successfully completed such relevant training as may be set out in a Code, in assessing whether the person is fit and proper to act in the capacity of a trustee of the scheme;

(c)

the collective expertise and experience of persons acting together in the capacity of trustees, in assessing whether they are fit and proper to act in that capacity.