Insolvency Law Made Clear: A Guide For Debtors

Introduction and aim of this book

This book is for individuals who are facing bankruptcy and those whose companies are facing insolvency.

The book is divided into six parts. Part 1 deals with individual bankruptcy and what happens to the bankrupt and their families during the bankruptcy; Part 2 covers the equivalent process when companies go insolvent; Part 3 focuses on how to appeal a decision of the court; Part 4 explains how costs may be awarded against parties in different situations; Part 5 provides information on how best to use a lawyer if resources are limited, and litigation tips if the debtor has to represent themselves; and finally, Part 6 consists of two annexes which contain model documents and checklists. These documents and checklists are also available as text documents so the reader can amend the templates as they wish (the files are provided within the digital download pack).

Part of the difficulty people face when having problems with debt are technical terms used without an explanation. ‘Insolvency’ is the word used when a person or a company has more debt than assets; or who/which cannot pay a debt which has fallen due. If that someone is a person, this can lead to them going bankrupt.

Bankruptcy is a court process where a stranger, the ‘Trustee in Bankruptcy’, takes control of the financial affairs of the bankrupt, selling most of the available assets to pay off the creditors. ‘Bankruptcy’ can be used loosely to mean ‘insolvency’, or precisely to refer to the court process where a bankruptcy order is made. This book tries to find a balance between using the correct legal terms – which are essential to understand since they will be the words used in court and in legal documents – and being comprehensible.

Bankruptcy is not the only insolvency process an individual can enter: see Chapter 1. The processes for a company are different and are set out in Chapter 13.

For some, bankruptcy is a way to escape debts and start again. How to do this voluntarily is explained in Paragraph 3.3. Others look for an alternative. Chapter 3 also discusses when to contest and when not to contest the making of a bankruptcy order.

Many people cannot afford legal advice or need to be careful with how they use the resources they have for legal advice. Chapter 17 offers guidance to those who can only afford limited legal advice, or who cannot afford any. The book should also be useful for volunteers in legal advice centres, or for professional lawyers who do not often encounter insolvency problems. It exclusively covers the law of England and Wales.

The book cannot cover every situation. It tries to cover the most common problems which individuals face. There is plenty of material available to help debtors. This book is different because it focuses on court processes. It describes what happens at a late stage of a debtor’s financial problems, if these problems are not resolved sooner. Most other available books advise on financial management before the problem proceeds to court. Resolving debt issues before they come to court will lead to a better outcome for the individual, but often this advice comes too late. It may not be enough for someone who has received a statutory demand to think about financial management: they also have to understand and participate in the bankruptcy process or they could be made bankrupt within two or three months.

Fortunately, creditors typically prefer to avoid going to court (also known as ‘litigation’). Litigation is expensive. It commonly happens that the people litigating (‘the parties’) spend more on lawyers than their original dispute was worth. However, some creditors are reluctant to compromise. Chapter 18 discusses strategies for negotiating with those creditors who are prepared to settle a case without making a debtor bankrupt. One of the key messages of this book is that debtors should use the fact that the English legal system is expensive and slow to their advantage to achieve a realistic settlement. It may also be useful for debtors to know what is likely to happen if they cannot resolve their debt problems any other way.

Insolvency is common for both individuals and companies. Statistics from the Insolvency Service show that approximately 122,000 people went insolvent in 2019, which is 1 out of every 400 adults in England and Wales. Of these, about 78,000 signed an ‘individual voluntary arrangement’ (see Chapter 1), 27,000 had a ‘debt relief order’ (again, see Chapter 1) and 17,000 went bankrupt. These three processes all have similarities. More is known about individuals who voluntarily go bankrupt than those who are forced to do so. The most common causes of bankruptcy for people who voluntarily go bankrupt are the debtor living beyond their means; relationship breakdown; reduction of the bankrupt’s income or loss of their employment. The typical debtor has approximately £35,000 of debt.

This book focuses on bankruptcy even if it is the less common outcome. It is necessary to understand what bankruptcy is (and is not) to understand how to approach the other processes.

A further 17,000 companies went insolvent in 2019. Of these, 12,000 were voluntary liquidations (see Chapter 12); 3,000 were compulsory (see Chapter 13); and 2,000 were administrations (Chapter 12)¹. The most common sector for the companies is construction, followed by wholesale and retail trade. This book tries to help directors of companies going insolvent; and advise individuals who are facing ‘directors’ disqualification orders’ as a result (see Chapter 14).

Principles of insolvency law

Describing some basic principles behind insolvency law will put the rules and arguments which follow in this book into their proper context.

The purpose of bankruptcy is to transfer management of the bankrupt’s assets to an independent professional, known as a ‘Trustee in Bankruptcy’. The Trustee can then organise the sale of these assets, gather information about who the creditors are, and distribute the proceeds according to the scheme set out in the Insolvency Act 1986. The Trustee can also recover assets by reviewing transactions made by the bankrupt before bankruptcy. A Trustee can undo the transactions which unfairly harm the creditors, or favour one creditor over the others. Finally, the Trustee can investigate the circumstances of the bankruptcy and the conduct of the bankrupt. If necessary, the Trustee can refer any possible criminal offences to the Insolvency Service for prosecution or for an order that certain restrictions continue to protect any future creditors.

The focus of bankruptcy is the ‘class’ of creditors, i.e. the creditors of a bankrupt as a whole. This has several important implications:

Firstly, the creditor who brings (‘presents’) the petition is not given any special treatment. If something is in the interests of the creditors as a whole but not in the interests of the petitioning creditor, the court’s instinct will be to protect the class.

The court will treat all creditors equally, within the statutory scheme. In particular, all the ‘unsecured’ creditors will be treated the same way. They will each receive a distribution in the bankruptcy which is proportionate to their debt. For example, if one creditor is owed £10,000 and another is owed £5,000, and the Trustee only has £1,500 to distribute, then the proceeds will be split 2:1, and each creditor will receive 10p for every pound owed. ‘Secured’ creditors are entitled to the proceeds of sale of a particular asset – for example, a bank who provides a mortgage over a house will be repaid from the proceeds once the house is sold. ‘Unsecured’ creditors are owed money without the benefit of receiving the proceeds of the sale of any property in particular.

Since the petitioning creditor is not treated differently from the other creditors, the debts owed to the petitioning creditor are not given any priority. This is important: by spending money pursuing a bankruptcy petition, some of which will not be recovered, a creditor is compounding their loss. The primary strategy for settling a bankruptcy petition is simply to say that it is not worth the creditor spending money which it will never recover.

The court is more involved in a bankruptcy hearing than in other areas of law. If a creditor sues a debtor for an ordinary debt, there are only two parties to the claim. If they both agree, the court is likely to respect their agreement. Not so for bankruptcy, where the court steps in to protect the interests of the creditors as a whole. For example, having presented a petition, court permission is required to withdraw it in case there is some side-deal which prejudices the class of creditors.

Bankruptcy is something which happens to one individual at a time. If a bankrupt co-owns something with someone else (typically, a family home which belongs to two parents), then only the bankrupt’s share is available for the creditors. Put differently; it is not possible to claim a debt against both a bankrupt and their spouse unless the spouse has actively chosen to accept the liability. Chapter 11 deals with guarantees, which is the most common way in which the spouse might be held liable.

Corporate insolvency law is similar. However, a company is a ‘legal fiction’, i.e. it is recognised by the law but it does not actually exist. As a consequence, the company can be ‘wound up’ at the end of the insolvency process and then dissolved.

¹ There were also a small number of receiverships which this book does not discuss.

PART 1     BANKRUPTCY

The next few chapters describe the bankruptcy process. A typical bankruptcy looks like the following:

Chapter 1       Alternatives to bankruptcy

Some debtors may wish to go bankrupt for the advantages it brings. Others have an alternative to bankruptcy, for example if the creditors prefer to settle the claim out of court or if they qualify for a niche alternative. Creditors may prefer to settle the bankruptcy claim out of court, frequently because they prefer a smaller sum now to an uncertain sum in the future. Nothing stops a debtor informally agreeing with a creditor to pay less debt, or to have more time to pay. However, the Insolvency Act creates certain structures which can be helpful to give a debtor an alternative to bankruptcy. This chapter discusses these alternatives.

1.1     Individual Voluntary Arrangements

An important alternative to bankruptcy is an ‘Individual Voluntary Arrangement’ (IVA). An IVA is a type of contract between the debtor and their creditors. If an IVA is passed it binds all known creditors who were entitled to vote in the arrangement, or would have been if they had notice of it. This includes creditors who voted against the arrangement.

BOX 1:     WHO IS BOUND BY AN IVA?

An IVA binds all creditors, except:

Certain family support orders

Student loans

Magistrates’ fines

Loans which are secured, e.g. mortgages

An IVA will bind ‘contingent’ and future creditors, i.e. those whose debts are not currently owed but might be. An example of a future creditor is where a purchaser buys an item and agrees to pay for it in future monthly instalments. A contingent creditor is where the debt depends on an external event, for example if someone is being sued – the potential damages which the court might award is a contingent debt. An IVA does not bind contingent creditors if the debt is wholly prospective, i.e. too unlikely to arise.

Since an IVA binds future creditors, those creditors are likely to take steps to minimise their exposure to the debtor. For example, an individual might be tied into a gym membership for 24 months, and so, in theory, the gym is a future creditor for 24 months’ worth of monthly fees. However, the gym is more likely to end the contract and will participate in the IVA only to the extent of the historic unpaid amount.

Typically IVAs are agreements where the creditors agree to receive a smaller sum, and the debtor agrees to pay the creditors the money they are owed. An IVA could include a commitment to sell specific property, or for a connected party like a family member to pay money into the IVA, on the condition that the creditors accept a smaller sum. An authorised professional (a qualified Insolvency Practitioner) supervises the debtor’s implementation and compliance with the terms of the IVA.

There are many private providers of IVAs. Some debt charities such as StepChange will also organise an IVA. Insolvency Service statistics show that the most popular provider of IVAs in 2019 was Creditfix, followed by Hanover Insolvency. Providers advertise the ability to write off large proportions of debt. IVA providers will be able to deliver on this promise – but only if the creditors agree.

1.1.1    The IVA process

The IVA process typically goes as follows.

If a debtor is interested in an IVA, they will contact an Insolvency Practitioner, who will likely become the ‘supervisor’ (monitor) of the IVA. The Insolvency Practitioner will have a standard template for an IVA. They will establish what funds the debtor has, what they are prepared to do as part of the IVA, and who their creditors are. They will contact all the creditors informally and discuss a potential proposal. If there appears to be an informal agreement, the supervisor will hold a creditors’ meeting. A creditors’ meeting typically is not a physical meeting of creditors, but a ‘virtual meeting’ where creditors will express their opinions formally and the IP will count votes. If 75% of the creditors, measured by the value of debts, agree, the proposal is passed.

From a debtor’s perspective, this means that the majority of creditors have to agree with the proposal. It may appear unusual that creditors routinely agree to accept a reduction (in slang, a ‘haircut’) on their debts. They are less likely to do so without the structure that an IVA creates. The presence of the supervisor is helpful for both the debtor and the creditors. It is helpful for the debtor because they will have some external assistance in negotiating the settlement. A standard payment structure for IPs is that they only get paid as part of the IVA. Potential supervisors are therefore typically motivated to try as hard as they can to agree a settlement between the creditors and debtor. It is helpful for the creditors because the IP is an independent professional who they are likely to trust more than the debtor, who has already defaulted on the debt. The supervisor can help enforce its terms.

A debtor does not need to prove they are insolvent to pass an IVA, as they need to for a voluntary bankruptcy, but if the debtor has the resources to pay their creditors then the creditors are unlikely to accept any form of reduction or delay. However, a debtor may be able to show that there is a real prospect that they will be unable to pay their debts at the current rate, and it is in the creditors’ interests to make a reduction today in order to receive a greater return over time.

Creditors can challenge an IVA by applying to the court. There are two primary grounds for challenging an IVA: firstly, that it is unfairly prejudicial to the creditor, and secondly that it was passed on the basis of a material irregularity. An example of ‘unfair prejudice’ would be an IVA where 24.9% of creditors received £0 and the remainder received their debts in full: such an IVA would probably get the 75% support in order to be approved, but it would unfairly prejudice the minority. An example of a material irregularity is the failure to assess the level of debt of each creditor accurately. Finally, creditors who were unaware of the vote will be able to challenge it within 28 days of receiving notice on either of the two grounds.

It may appear possible, at first glance, to propose an IVA with a debtor’s friendliest creditors and rely on the fact that other creditors would be bound by the agreement. This is unlikely to work. First, the supervisor will try to contact as many creditors as they are aware of, and it is an offence to make a false representation in order to obtain approval to pass an IVA, including lying to the supervisor about the list of creditors. Second, the creditors will be able to challenge the IVA as materially irregular if they were not contacted when they should have been.

A debtor who proposes an IVA can seek an interim order. An interim order operates as a ‘moratorium’, i.e. it prevents creditors from beginning or continuing any legal process against the debtor without court permission. In particular, it prevents a landlord forfeiting a lease, bailiffs repossessing property, or the presentation of a bankruptcy petition. The moratorium usually lasts for 14 days, but they are routinely extended for longer to allow the potential supervisor of the IVA to prepare their report on how viable the IVA is.

BOX 2:     INTERIM ORDER FAQS

Why do they exist? Interim orders exist to make it easier for an IVA to be made. Consider a position where one creditor is in favour of an IVA, but another insists on a bankruptcy petition and yet another is trying to repossess some property. A debtor would have to deal with all creditors at once, and the IVA is likely to be low priority.

Who can get an interim order? The court will only make an interim order if it is satisfied that: a) the debtor intends to make an IVA proposal; b) the debtor would be able to make a bankruptcy application (or is already an undischarged bankrupt); c) no previous application has been made by the debtor in the previous 12 months; and d) there is a prospective IVA supervisor who is willing to act.

How do I get an interim order? The debtor needs to apply to the court and pay the fee, which is currently £180. The potential supervisor is likely to be willing to complete the paperwork on behalf of the debtor. They may even pay the fee upfront in the expectation of being repaid as part of the arrangement.

Overall, if it is possible to enter into an IVA, this will almost certainly lead to a better outcome for the debtor. Notwithstanding any fee the supervisor charges (typically a few thousand pounds), IVAs come with reduced legal fees since no litigation will be necessary. In nearly all IVAs the creditors either agree to accept a lesser sum, or accept it later. There will also be no need to appoint a Trustee in Bankruptcy to realise property: the debtor will be expected to realise it themselves or to give it voluntarily to the supervisor to sell. Not surprisingly, IVAs are extremely popular. Statistics from the Insolvency Service show that there were almost 78,000 IVAs agreed in 2019.

IVAs do, however, share some of the negative features of bankruptcy, including:

• The debtor’s name and details of the IVA are publicly listed on the Insolvency Register.

• There are still restrictions on the debtor incurring liabilities (i.e. getting into debt) without permission of the supervisor.

• An IVA still has an impact on credit rating. Since an IVA can last longer, it can remain on the debtor’s credit score for longer.

• IVAs typically last for a longer period than bankruptcy. Bankruptcy is over in a year; IVAs are typically several years long.

1.1.2    Failure of the IVA

If a debtor does not comply with the terms of the IVA, the IVA is said to ‘fail’. The effect of failure will depend on the terms of the IVA, but usually this results in the supervisor petitioning for the bankruptcy of the debtor. A supervisor can petition for the bankruptcy of the debtor if they can show that the debtor has failed to comply with the IVA’s terms; that the debtor submitted misleading or false information in support of the IVA; or that the debtor has not complied with the reasonable requests of the supervisor (s276 of the Act). The creditors’ position is also likely to be determined by the terms of the IVA, but the default is usually that they are no longer bound by the IVA.

In exceptional circumstances, the court can order that the IVA should continue despite the debtor’s breach. This can be, for example, on the basis that the IVA is still in the best interests of creditors. However, the court’s starting point will be that if the debtor agreed to the IVA, and the IVA has specific provisions dealing with its failure, then the debtor should be bound by the agreement. A debtor cannot rely on the court’s discretion to dismiss a bankruptcy petition in these circumstances.

If one IVA fails, or if it seems likely to fail, it is possible to pass a second IVA provided creditors vote for it. The rules for a second IVA are the same as the first.

1.1.3    Conclusion

From the perspective of a debtor who cannot pay their debts, an IVA is likely to be the best route out of their financial difficulties. However, it is not within the debtor’s power to enter into an IVA by themselves: they need 75% of the creditors by value to agree as well. Most of this book concerns situations where the creditors (or at least more than 25% of them by value) insist on presenting a bankruptcy petition. However, a common litigation tactic for debtors is to make an IVA appear more attractive in order to settle the claim. As will be discussed, a bankruptcy petition must be dismissed by the court or withdrawn by the petitioner if an IVA is agreed. Part of the strategy of a debtor is likely to be to promote an IVA, and so the route should never be closed. It follows that making a threat of the form "if you do not agree by a certain date, I will withdraw the proposal" is likely to be counter-productive.

1.2     Debt relief orders

Debt relief orders (DROs) are an administrative scheme which allows debtors with very little money to escape their debts. They can only be made when a debtor has total assets of less than £1,000, unsecured debts of less than £20,000 and a disposable surplus monthly income (after household expenses and taxes) of less than £50 per month.¹ There are complications with the definition of these terms, but if the debtor’s financial position is in this range, then a DRO may be an option. A DRO does not involve a Trustee in Bankruptcy selling the estate of the debtor, like an IVA. However, unlike an IVA, a debtor subject to a DRO will not be expected to contribute to repaying the debts. This is because the debtor’s estate is of such little value that it would not be worthwhile doing so.

A DRO application must contain a list of liquidated debts, sometimes called a schedule of debts. A DRO removes all debts in that schedule. Not all debts can be included in a schedule to the DRO application: unliquidated debts and the debts in Box 1 on page 7 above cannot be included. A DRO creates restrictions similar to a bankruptcy order, which last a year. For example, debtors subject to a DRO cannot borrow more than £500 without disclosing the existence of the DRO, and similar criminal offences apply to a debtor who makes a gift with an intention to defraud creditors. The DRO does not affect the right of a secured creditor to enforce their security, for example, if the creditor has a log-book loan, they may still be able to repossess the car.

If a debtor makes a DRO and accidentally fails to include a debt, it falls outside of the DRO and a creditor will be able to enforce it.

There are typically more DROs made than bankruptcy orders. There were almost 27,500 DROs made in 2019. The debtor is required to submit a paper application to the Official Receiver via one of six approved bodies. These are Citizens Advice; StepChange; MoneyPlus; Institution of Money Advisers; National Debtline; and Payplan. A DRO currently costs £90, but some providers allow this to be paid in instalments and some charities provide grants to help applicants.

BOX 3:     WHAT IF THE DEBTOR NEARLY QUALIFIES FOR A DRO?

A debtor with £1,001 of assets cannot apply for a DRO. From the debtor’s perspective, this is highly regrettable. If they qualified for the DRO, they would keep up to £1,000. If they do not qualify then they may be made bankrupt and so lose their £1,001 in the various legal fees concerned. What can the debtor do?

It is a criminal offence to make a false representation in the application (s251O of the Act). It is a criminal offence to make a gift or transfer of property within two years of making an application (s251Q). A person is not guilty if they had no intention to defraud or conceal the state of affairs (s251Q(3)). It is likely to be a criminal offence to give the £1 to a friend before applying for a DRO. It is not a criminal offence to spend the £1, provided it is not done to defraud the creditors. If the money was spent on something of lasting value, this would remain the property of the debtor and count towards their assets. However, if the purchase was on food or at the cinema, nothing of value would remain afterwards.

The intention of the debtor is critical. It would be a criminal offence to deliberately go to a restaurant so that their creditors do not receive the money. It is not a criminal offence if an individual feels hungry and decides to spend a few extra pounds at a restaurant. The key difference is whether or not the debtor has the motive of defrauding their creditors. The criminal offences applicable to DROs are similar as for bankruptcy, and so see Chapter 7 for more detail.

If a debtor has assets of over £1,000, and debts of over £20,000, it may be possible to repay the debts until the debts fall below the critical level of £20,000. This is a sensible strategy for the debt since it allows them to keep at least £1,000. Care should be taken when repaying debts to ensure it does not constitute a preference. In practice, this means the primary motivation should not be to allow a particular creditor to be in a better position (and certainly not a connected creditor, such as a family member). A debtor who repays their landlord because they are concerned about being evicted would not be giving a preference.

If a debtor increases their assets or income to above the minimum set out above, the Official Receiver can revoke the DRO. This commonly happens because the debtor receives a windfall (say, they receive an inheritance which takes them over the £1,000 limit) or because the debtor starts a new job which increases their disposable monthly income. This creates a perverse incentive not to be promoted (and perhaps, not be employed at all). However, the effect is only a year and a relatively small increase in assets is unlikely to trigger a review by the Official Receiver. If the income arises after the DRO year, then the debtor can keep it without needing to repay their earlier debts.

If a debtor qualifies for a DRO, a DRO is likely to be an even better outcome than an IVA. This is because there is no need to repay the debts: the slate is wiped clean automatically. It is also because a DRO does not require creditor approval. No creditor will choose to approve a DRO: it guarantees zero return and bars them from recovering their debt. A DRO can be challenged, but in practice, unless the creditor believes that the debtor has substantially more than £1,000 of assets, it will not be value for money for them to do so. Note the use of a DRO when negotiating an IVA: if the debtor is in a poor financial position, they may be able to use the threat of a DRO to ensure that they keep at least a few hundred pounds of assets left to themselves.

A debt relief order can lead to a debt relief restriction order or undertaking: these are equivalent to bankruptcy restriction orders, for which see Chapter 9.

The six organisations that can submit DROs all have websites which are written for the ordinary user and can be consulted for more information about the process.

Stop press

There is currently a consultation to raise the thresholds to make it easier to obtain a DRO. This would increase the total amount of debt allowable to £30,000 (from £20,000); increase the value of assets owned by the individual to £2,000 (from £1,000); and increase the level of surplus income to £100 (from £50) per month.

1.3     County Court Administration Orders

A County Court Administration Order (CCAO) is another insolvency procedure where the County Court takes control of the debtor’s finances. It is rarely used. There were fewer than 150 of these orders made in 2019.

Under s112 of the County Courts Act 1984, where a debtor is unable to pay a County Court judgment of less than £5,000, the court may make an order providing for the administration of their estate. This typically is the payment of the debt by instalment, or the debt may be written off after a certain time. Since the debt must be less than £5,000, the creditor could not present a bankruptcy petition in any event.

The debtor needs to complete form N92, which can be found at https://www.gov.uk/government/publications/form-n92-application-for-an-administration-order. The decision is usually made without a hearing. There is space for the debtor to suggest an appropriate repayment amount per week or month, or the court can make its own decision. There is space on the form to state any particular circumstances which the court ought to know about.

If the order is made, the court will send a copy to all the creditors who will be included in a schedule to the order. This procedure is appropriate when the debtor cannot use a DRO because they do not meet the qualifying conditions. They can be used when the debtor has a monthly income above the DRO threshold but the creditors refuse to agree to an IVA. These orders can be made by any County Court.

There are possible changes to this procedure, but since these are on indefinite hold, they are of no current interest to a debtor.

Stop Press: The Debt Respite Scheme (Breathing Space)

The Government is planning on introducing a ‘Debt Respite Scheme’, also known as ‘Breathing Space’. This will allow debtors some protection from enforcement action, including the presentation of a bankruptcy petition, for up to 60 days. For example, creditors will not be able to start a claim against the debtor, send bailiffs, repossess property, or disconnect the gas supply, while the scheme is in place. The Debt Respite Scheme will also freeze most interest and charges on debts. The Debt Respite Scheme is available to every debtor, but there is an extension for individuals who are receiving mental health crisis treatment. Those individuals will be able to access this scheme for as long as their crisis treatment lasts, plus 30 days. The scheme can only be accessed via a debt adviser, and the policy behind the proposal is to encourage debtors to get debt advice at an early stage. The debt adviser will need to be satisfied that the Debt Respite Scheme would be appropriate for their client, and that the debtor cannot, or is unlikely to be able to, repay all their debts.

This scheme is scheduled to commence in May 2021. It appears to be a shortcut to obtaining an interim order and could be used to allow the debtor to enter into an IVA or some other compromise position with their creditors. However, the Debt Respite Scheme as currently drafted appears to only stop bankruptcy proceedings beginning, and does not automatically stay bankruptcy proceedings once they have been initiated – regardless of whether the debtor is having a mental health crisis. However, a judge would still have discretion to adjourn a hearing if they considered it appropriate during the ‘Breathing Space’ period.

For more details, see the Government’s advice to creditors at https://www.gov.uk/government/publications/debt-respite-scheme-breathing-space-guidance/debt-respite-scheme-breathing-space-guidance-for-creditors.

¹ The precise conditions for a DRO are that: a) the debtor is domiciled in England and Wales on the application date, or at any time during the three years before applying the debtor was ordinarily resident or had a place of residence or carried on business in England and Wales; b) the debtor is not an undischarged bankrupt, subject to an interim order or an IVA, or subject to a bankruptcy restrictions order or a debt relief restrictions order; c) a bankruptcy application has not been made, or has