SIP7 is the baby bear of the three revised SIPs that came into force on 1 April 2021. However, despite the RPBs’ intention being primarily to bring SIP7 into line with the revised SIP9, the new SIP7 includes some wrinkles that are worth exploring.
The revised SIP7 (E&W) can be found at: https://insolvency-practitioners.org.uk/regulation-and-guidance/england-wales/
Does it apply to MVLs?
Although SIP9 is headed up “Payments to Insolvency Office Holders…”, the revised SIP9 states explicitly that it does not apply to MVLs (“unless those paying the fees require such disclosures”). In comparison, SIP7 is entitled “Presentation of Financial Information in Insolvency Proceedings”, but there is no explicit reference to MVLs. Does this mean that MVLs are included, as they are a proceeding under the Insolvency Act 1986, or are MVLs excluded, as they are not proceedings in relation to an insolvent entity?
If I had to jump one side of the fence, I’d say that SIP7 leans towards excluding MVLs: paras 12 and 15 refer to “the insolvent estate”and “case” has been replaced throughout with “insolvency appointment”.
Does it matter if MVLs are included or excluded?
Ok, I admit that in general I don’t think it matters, at least not to the current generation of IPs. We’re all accustomed to producing MVL reports with generally the same format as reports on insolvency cases. However, when new entrants start drafting reports from a clean slate, practices may begin to diverge.
It would have been useful if the scope of SIP7 had been made clear in at least a couple of areas. Para 19 of SIP7 conveys a similar requirement as para 15 of SIP9, that creditors and other interested parties should be informed of their rights (although oddly SIP7 states that “adequate steps should be taken to bring” those rights to their attention – I’m not sure I know what constitutes adequate steps). If MVLs are included, is more required than simply complying with R18.4(1)(f) when issuing progress reports?
Another area that could make a difference in MVLs is para 15e, which requires “any amounts paid to the office holder or their associates or firm other than out of the estate” to be disclosed. It is fairly commonplace for MVL liquidators – and indeed their firm’s accounts and tax departments or sister companies – to be paid fees other than out of the estate. Are the RPBs content for this detail to be excluded from MVL reports?
Consistency in “Associates”?
SIP7 repeats the revised SIP9’s definition of associate as including “where a reasonable and informed third party might consider there would be an association”.
However, “associates” appears in SIP7 in only one other spot: in para 15e mentioned above, which now requires disclosure of payments paid other than out of the estate, not only to the office holder, but also to “their associates or firm”. Does this mean that we’re not required to disclose payments to associates or to the firm from the estate? No, it seems to me that this is required by the rest of para 15, which includes the disclosure of “all other amounts required to be approved in the same manner as remueration”, so if we’ve handled SIP9 correctly and recognised that associates’ costs need approval, then we will disclose them separately under SIP7.
What kind of payments could be captured by these disclosure requirements? Although we are awaiting the RPBs’ additional guidance on SIP9, which hopefully will clarify what an “associate” is, it occurred to me that it could include the following:
- Where the firm pays for pre-appointment work carried out by someone with whom they have an association (e.g. introducers, fact-finders)… although it is not clear whether the SIP7 disclosures are required only for the period being reported on;
- Where the firm has received payment for pre-appointment work over and above that captured by R3.1 (i.e. work with a view to the administration), R6.7 (i.e. work pre-CVL for the SoA and S100 process), or for pre-Nominee (e.g. Proposal drafting or advice) work – I have seen cases where the firm has worked with the company (or debtor) for some time before settling on the eventual insolvency process and the fees paid in those early days haven’t always been disclosed; and
- Any IVA-connected payments received by associates from the debtor or elsewhere, although I expect the revised SIP3.1 will soon take care of that in the same way that the revised SIP3.2 has done.
Para 11 is new:
“Accounts should be reconciled to the balances at bank, the case records and to any amounts due to the office holder”
I suspect that most practices make the producing of a statutory report the ideal time to reconcile the bank account and to record for the file the IP’s (or manager’s) formal review of this. Of course, practices regularly reconcile accounts at other times too. Generally therefore, this SIP7 requirement does not appear onerous, but it does mean that, if an R&P is revised because a report has been delayed – especially Admin Proposals, fee proposal packs or final accounts/reports, where the report dates usually move when they’re revisited – another reconciliation will need to be produced.
Ok, so that’s covered reconciling accounts to the bank, but what about reconciling them to “the case records and to any amounts due to the office holder”? Does this mean that the accounts need to be reconciled to the case records’ lead schedules, e.g. of debtors, rental payments, even where those schedules have pretty-much fallen out of use? What about where you’ve raised a final bill but only had it part-paid from the estate (because you’re waiting for a VAT refund), should you now be noting a reconciliation of the R&P with your firm’s debtor records? Or is it enough simply to sense check the R&P to make sure that it doesn’t include any peculiar narratives, such as “preparation of SofA” when it should be pre-administration costs?
Given that “accounts” in a SIP7 sense might include “reporting on remuneration and/or expenses, whether incurred, accrued or paid” (para 16), should you be checking that everyone has posted their timesheets for the period under review before producing a time cost breakdown? And again, if your Admin Proposals, fee proposal packs or final accounts/reports were delayed and a fresh time cost breakdown is attached, does this mean you need to reconsider this reconciliation?
Another scenario is where a decision procedure needs to be repeated: I have seen some IPs issue a new Notice of Decision Procedure with a new decision date and simply refer to the original fee proposal pack as providing all the necessary information. This doesn’t really work, does it, where 2 weeks or more have passed?
Spot the difference:
- Old SIP7 (para 6): “Receipts and payments accounts should show categories of items under headings appropriate for the case, where practicable following headings used in any prior statements of affairs or estimated outcome statements. Alternatively, an analysis should be provided to enable comparison with the ‘estimated to realise’ figures in any prior document.”
- New SIP7 (para 9): “Receipts and payments accounts should show categories of items under headings appropriate for the insolvency appointment, where practicable following headings used in prior statements of affairs or estimated outcome statements. An analysis should be provided to enable comparison with the ‘estimated to realise’ figures in any previously issued document.”
Steven Wood in the ICAS webinar on the SIPs stated that the change means that it is “no longer acceptable to simply have the R&P using headings previously used in a SoA or EOS thereby leaving creditors with the information to do the comparison but requiring several documents to do so”. I can understand why the RPBs might want this outcome, but personally I don’t see that SIP7 achieves it. True, the word “alternatively” has been removed so that now in every case “an analysis should be provided to enable comparison with the ‘estimated to realise’ figures in any previously issued document”, but this does not mean that all R&Ps must provide the EtoR figures. It just means that the R&P must provide sufficient information to enable a comparison to be made with any such figures in any previously issued document, which can be achieved by analysing receipts according to the previously-issued SoA/EOS headings. This meaning is reinforced by para 8 of the SIP, which states: “Unless there is a statutory provision to the contrary, this does not require repetition of information previously provided”.
Having said that, it’s not a big deal, as most IPs provide the EtoR figures in report R&Ps… but I do think that an RPB might have a hard time enforcing the practice based on the wording of the SIP.
To be honest, I don’t think the remaining changes need much attention:
- The introduction and principles use pretty-much all the same words, just in a different order;
- Para 20 is new: it requires a former office holder to provide to their successor information to the extent set out in the SIP;
- Para 25 explains that a trading R&P is provided “to enable an appropriate understanding of what was done, why it was done and how much it cost”; and
- Hive-downs have been replaced by “Alternative approaches to asset realisation”. The section (paras 26 and 27) doesn’t explain what is meant by this, but gives hive-downs as an example. Again, the SIP states that sufficient information should be provided “to enable an appropriate understanding of what was done, why it was done and how much it cost”, which is a principle that seems to me adequately required by SIP9 in any event.
One of our clients sent Jo and me a plea that we reduce as far as possible the number of updates to our document packs. Oh, if only we could!
We understand that a revised SIP3.1 is near to release, we expect a revised SIP16 to be issued around the end of this months to coincide with the new Connected Person Disposal Regulations, and I have heard rumours of some changes to SIP13 also because of the new Regs.