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Bankruptcy is a form of consumer protection, providing individuals with the opportunity to write down debt and receive a fresh start. Given the difficulties lower income consumers may face in asserting their rights through individual consumer redress mechanisms, bankruptcy may also be viewed as a substitute for the limitations of these mechanisms. While bankruptcy may be an overinclusive remedy, permitting an individual to write down all unsecured debt, it can provide a type of aggregate rough justice which balances out the interests of creditor and debtor.
Insufficient attention has been paid to bankruptcy as a site of consumer protection. Since the 2008 financial crash, many jurisdictions have introduced responsible lending provisions and indeed it may be described as a nascent international principle of consumer credit law. Bankruptcy could be one site for raising issues of responsible lending. This is not a novel suggestion since s343 of the Insolvency Act 1986 permits a trustee to apply to court to have a credit transaction entered into by the debtor set aside if it is extortionate. This provision is similar to the original extortionate bargain provision in the Consumer Credit Act 1974. Earlier Bankruptcy Acts had also contained limits on interest chargeable on creditors claims to prevent rapacious moneylenders taking the bulk of an estate, an issue highlighted by the Select Committee on Moneylending in 1890. It concluded that claims of other creditors, other than moneylenders were often swamped by the claims of the moneylender (see here at ix). The Cork Committee in 1982 proposed that the court should continue to have the power to set aside an extortionate credit transaction in bankruptcy but the provision, like the similar provision in the Consumer Credit Act 1974, seems to have had little effect in practice given its vagueness and high burden of proof. Thus the unfair credit relationship provision replaced the extortionate credit bargain provision in the 2006 reforms to the Consumer Credit Act 1974.
Under current practice the Insolvency Service may investigate the conduct of the debtor and there is always the possibility of a Bankruptcy Restriction Order or Undertaking if an individual has for example run up debts irresponsibly in the period preceding bankruptcy. A balancing provision could be introduced requiring the Insolvency Service to check for irresponsible lending and any contraventions of consumer protection and debt collection regulation. This would not require the Service to engage in fishing expeditions, but provided some sanctions (such as disallowance of a claim in contravention of consumer protection rules) existed this might be a modest contribution to achieving the goals of responsible lending, one of the objectives of personal insolvency identified by the World Bank (see here at 31). In this context the most recent US proposal for bankruptcy reform include provisions which would disallow the claims of creditors who violate Federal Financial consumer protection rules and permit the Consumer Financial Protection Bureau to appear in any bankruptcy case to enforce unfair and deceptive practices law as well as acting a Consumer Ombuds (see here and here) .
The Insolvency Service would be unlikely to willingly adopt such a role, but it could clearly be justified in terms of its role as an impartial actor who has an interest in ensuring that irresponsible lending or contraventions of credit rules do not occur. In fact the Service is unlikely to have the resources or competence to undertake such a role. Katharina Möser has shown how the interests of the Policy Unit in London, striving to be a key player in high level policy debates, was content to pursue a strategy which dismantled much of its front line functions during the austerity following the financial crash in 2008 (see here). The Service is unlikely to support any new regulatory functions, which suggests that the implementation of responsible lending in bankruptcy administration should be a significant topic in any review.
The government has now published draft regulations for a ‘breathing space’ for individuals with problem debt in England and Wales (see here). The breathing space of 60 days, to be accessed through FCA regulated debt advisors, will protect an individual against creditor action and permit a debtor to consider possible debt solutions.
A central policy objective is to incentivize individuals to seek professional debt advice at an earlier stage than at present (see explanatory memorandum para 7.2 here) preventing individuals sinking into a morass of debt. A major proponent of the breathing space, the debt charity, Step Change Debt Charity, argues that the breathing space will fill an unmet need for those in temporary difficulties and those who do not need or want an insolvency solution. (see here).
Encouraging earlier recourse to debt advice agencies is an often repeated trope. It is an admirable aspiration, an example of the more general argument that early intervention may prevent more complex and escalating problems and reduce overall social costs. It assumes that individuals wait too long before seeking debt advice and only turn to advisors when a crisis occurs such as an enforcement agent calling. But a counter argument is that effective action may only take place when a crisis occurs. Early intervention may simply become an additional step in the process. In short we would probably want a clearer idea of an optimal point for intervention in order to determine what is “early” or “late”.
Early intervention will require that agencies reach out to potential clients. Those with significant debt problems may often be from disadvantaged groups and the reasons individuals may not seek third party advice include the potential shame of seeking debt advice and its effects on their credit rating (an issue still under discussion with the credit reference agencies) as well as possibly a belief that the law can do little to protect them. The Wyman review of debt advice cited evidence for the most common reasons that cause individuals to delay seeking advice , ,namely that individuals thought they could sort it out themselves, were too embarrassed or ashamed, or thought no-one could help (Wyman, 11 available here). Wyman concluded that it was uncertain how many individuals could be successfully encouraged to seek advice. Since the criteria for entry to a breathing space (reg 24 (4)”unable or unlikely to be able to repay some or all of their debt as it falls due” are not wildly different from those for a bankruptcy application by a debtor (“unable to pay his or her debts”) it may be difficult to ensure the effectiveness of early intervention.
The impact analysis for the regulations predicts an increase in debt advice of 1.3 million people over the next ten years (see Impact Analysis here) but admits to the difficulty of predicting the future take-up of debt advice. It also projects the highest benefits of the policy accruing in higher recoveries for creditors (Impact analysis para 13.1), followed by productivity benefits for employers, and reduced negative mental and physical health outcomes among debtors. The assumption seems to be that more individuals will enter into repayment arrangements with their creditors under the breathing space scheme, rather than spiral into bankruptcy. This fits with the arguments of Step Change above.
The original breathing space proposals were linked to debtors entering a statutory debt repayment scheme, based on the Scottish model (see discussion here). The government has however delayed the implementation of this aspect perhaps because there is less consensus about the success of the Scottish statutory debt repayment scheme.
The introduction of the breathing space adds to the complexity of the existing English approaches to over-indebtedness (e.g. informal repayment plans, token payments, IVAs, DROs, Bankruptcy, Bankruptcy with an income repayment order). The manner of its implementation will depend significantly on the approaches of the main debt advice providers.
The Coronavirus pandemic has spawned a raft of responses to address potential debt problems faced by businesses and individuals (see here). For example, the most recent FCA initiative includes temporary payment freezes on mortgages and credit cards for up to three months with the further proviso that these measures should not adversely affect a consumer’s credit rating (see here).
These provisions have been layered onto existing FCA protections for individuals facing difficulties with repayment. These include the general principle to treat customers fairly (here), provisions on forbearance in debt collection(here), and rules on addressing persistent credit card debt (here). Critics have suggested that firms have not embedded these policies consistently into their practice (see here). This is one reason for the proposed statutory “breathing space” (see generally here and here) for individuals with problem debt, which has been slowly working its way through the policy process.
I do not want in this blog to engage in a detailed analysis of these provisions. I want rather to note the significance of these specific developments in relation to thinking about and the teaching of contract law, and in particular the approach of the law to changed circumstances affecting contract performance. This is ultimately of much practical importance.
English law students learn from standard textbooks in first year contract law that the courts are very reluctant to adjust the terms of contracts because of a change of circumstances. “Mere” hardship or inconvenience will not permit adjustment. Students learn that a contract will only be frustrated i.e. brought to an end, where without the default of either party, performance has come to be radically different from that which was undertaken (see e.g. Davis Contractors Ltd v. Fareham Urban District Council  AC 696). This proposition is supposedly given more authority by being expressed in Latin… non haec in foedera veni (roughly translated as it was not this that I promised to do).
This approach reflects classical contract law where the assumption is that parties fix all the risks at the time of entering into the contract. Strict rules on adjustment create incentives on parties to plan at the outset, for example, by inserting a force majeure clause into the contract. A standard force majeure clause is that of the International Chamber of Commerce (ICC) which includes “the occurrence of an event or circumstance (“Force Majeure Event”) that prevents or impedes a party from performing one or more of its contractual obligations under the contract, if and to the extent that the party affected by the impediment (“the Affected Party”) proves: a) that such impediment is beyond its reasonable control; and b) that it could not reasonably have been foreseen at the time of the conclusion of the contract; and c) that the effects of the impediment could not reasonably have been avoided or overcome by the Affected Party.” A party successfully invoking this Clause is relieved from its duty to perform its obligations under the Contract and from any liability in damages or from any other contractual remedy for breach of contract, from the time at which the impediment causes inability to perform, provided that the notice thereof is given without delay (see here). If the impediment is temporary then the party obtains relief only during the temporary period.
Force majeure clauses may be common in many commercial projects and contracts. However lenders do not voluntarily provide such clauses in consumer loan contracts, not surprisingly, given the recognition that consumer credit contracts often represent standard form contracts of unequal bargaining power. The UK Supreme Court recognised this in 2014 in Plevin v. Paragon Personal Finance (see here) where Lord Sumption commented that ‘the great majority of relationships between commercial lenders and private borrowers are probably characterised by large differences of financial knowledge and expertise. It is an inherently unequal relationship’.
It follows from these propositions that events such as loss of employment are not treated as a defence to repaying one’s debts.
However, the statutory development of the law such as the FCA rules above, envisage the potential adjustment of obligations in the event of a change of circumstances.
The introduction of a statutory breathing space confirms this conclusion. It draws inspiration from earlier provisions such as section 107 of the Tribunals, Courts and Enforcement Orders Act 2007 which introduced an Enforcement Restriction Order. This would have restricted enforcement where an individual was unable to pay one or more of his debts, was suffering from a sudden and unforeseen deterioration in his financial circumstances and there was a realistic prospect that the debtor’s financial circumstances would improve within the period of six months beginning when the order is made. Unfortunately the government did not bring this provision into force but it provided an inspiration for the lobbying by debt charities for the introduction of a statutory breathing space. The 2007 provisions could themselves be traced back to the report of the Cork Committee in 1982 (often regarded with great reverence by English insolvency lawyers) which had recommended the introduction of an enforcement restriction order for such period and on such terms as the court may deem expedient (see para 310).
In addition, section 129 of the Consumer Credit Act 1974 permits a court to make a time order for repayment, if it appears to the court ‘ just to do so’, having regard to the means of the debtor as well as permitting the remedying of any breach by a debtor. Undoubtedly the courts look at the circumstances of the loan, the reasons for the default and the payment record of the debtor in making such an order. Such a discretion continues a historical approach of some lower courts which exercised discretion to protect lower income debtors from overreaching creditors.
Moreover, bankruptcy and insolvency law are in substance mandatory ground rules of contracts permitting an individual to discharge their obligations if they are an honest and unfortunate debtor. Tables 1 and 2 below outline the importance of change of circumstances such as loss of income, increased expenses and relationship breakdown, as reasons for debtors filing bankruptcy and Debt Relief Orders.
Taken together, all these factors support a general legal principle of social force majeure, as a ground rule of consumer contract law, with the consequence of a temporary or more permanent adjustment of the contract. Thomas Wilhelmsson outlined the idea of social force majeure in the early 90s (see here) as being when an individual is affected by unfortunate change of circumstances outside of her control which cause difficulties in repayment and the consumer is not at fault in causing this situation. To the extent that this may cause any increase in costs, creditors are in a better position to bear and spread these costs. In reality a temporary breathing space may be a method of more effective recovery in the long run rather than an aggressive enforcement policy.
Recognition of such a principle links contract law to one of the pillars of the welfare state, namely protection against unexpected drops in living standards caused by for example unemployment or illness. This principle could inject discussion of unemployment and social divisions into the world of contract law doctrine and texts. Rather than being viewed as an exception to the dominant idea of pacta sunt servanda (agreements must be observed) , social force majeure represents a counterprinciple in private contract law and not a topic relegated to an exception or to be discussed only in specialised consumer or welfare law courses.
Table 1: Debtor application bankruptcy by reason between Quarter 2 2014 and Q1 2018
|Reason for bankruptcy||Number||%|
|Living beyond means||8,280||16.9%|
|Reduction of bankrupt’s income||5720||11.7|
|Loss of bankrupt’s employment||4970||10.2|
|Loss/reduction of household income||4650||9.5|
|Loss of market||3120||6.4|
|Other reason given||2550||5.2|
Table 2: Causes of Debt Relief Order: 2015
|Increase in expense||2885||11.9|
|Living Beyond Means||3760||15.5|
|Loss of employment||2795||11.5|
|Reduction in household income||8080||33.3|
N cases =24175, multiple causes cited in some cases. Source: Insolvency Service
April 2019 marks the tenth anniversary of the implementation of the English Debt Relief Order, a low-cost (£90 fee), means-tested, administrative procedure only accessible online through approved intermediaries, which provides a discharge of most unsecured debts after one year. The Insolvency Service view it as a success (see here) and some debt advice professionals share this view, one referring to the DRO as a ‘magic wand’ for those unable to pay for bankruptcy (Quarterly Account, Winter 2018-19, 39).
I have written elsewhere on the political background to the introduction of the DRO (see here) and its implementation (see here). Its development responded to pressures from groups such as Citizens Advice who argued that the costs of bankruptcy made it out of reach for many of the low-income clients whom they advised. The DRO is intended therefore to provide a fresh start and financial inclusion for individuals unable to afford the costs of bankruptcy and for whom bankruptcy would be a disproportionate remedy. The term Debt Relief Order rather than bankruptcy was adopted to reduce the stigma associated with bankruptcy, encouraging those in irretrievable distress to seek a remedy. The media dubbed it ‘bankruptcy light’ and it is now used more frequently than bankruptcy. The relevant government departments (Ministry of Justice, Insolvency Service) rejected the alternative policy of waiving the significant bankruptcy fee (currently £550) for those unable to pay. The DRO was ‘sold’ to debt advice groups such as Citizens Advice as a cost-reduction measure: the filing of a DRO by a debt relief agency might permit agencies to close a file, rather than continuing to respond to creditors’ queries about the status of a debtor.
The government in its legislative impact analysis in 2006 predicted an uptake for the remedy of over 40,000 after two years (see here), but the numbers have never come near to meeting this target, even with the increase in 2015 from a ceiling of £15,000 to £20,000 of unsecured debt liabilities qualifying for access to a DRO. Many reasons may account for this pattern but the Insolvency Service has not attempted to explain this discrepancy. In response to a Freedom of Information request the Service replied that the forecast should not have been taken seriously as ‘any predictions of the level of DRO uptake would have suffered from how little relevant data was available’. This was certainly not how the forecast was presented in the original legislative impact analysis.
When the DRO was introduced, the government did promise a thorough evaluation of its impact and a preliminary report was issued in 2010, promising a more in-depth evaluation. In 2014, a review of the legislation was conducted through a call for evidence and consultation. The government concluded that ‘the DRO competent authority and intermediary model is working well and…DROs have a very significant impact on the wellbeing of debtors.’ Feedback from clients of the approved intermediaries indicate that the DRO had the immediate effect of improving their mental and physical health, family relationships and reduced stress. The Insolvency Service conducted a non-random monkey survey where some individuals using DROs indicated that the DRO had improved their physical and mental health. However, little evidence was provided concerning the economic and financial long-term impact of a DRO and the ability of individuals to subsequently obtain credit. These findings suggested the need for more detailed inquiry into the longitudinal effect of a DRO, and a debtor’s journey into and out of the DRO. No such systematic study currently exists. The only small longitudinal study of individuals receiving debt advice concluded that many individuals continued to face debt problems; even those filing for bankruptcy did not achieve a fresh start (see here )
Is it a lighter touch to bankruptcy–a form of “bankruptcy light”? Yes, in terms of the price paid by the debtor but I have outlined (here) how bankruptcy may in fact be a less complex process than the DRO, that the significant costs of processing the DRO are borne primarily by the approved intermediaries, and an individual may be subject to as much scrutiny under a DRO as in bankruptcy.
A characteristic of the DRO is the “partnership” in its implementation between the Insolvency Service and debt advisors, the approved intermediaries to whom debtors must turn in order to access a DRO. This requirement substantially reduces the costs of the Insolvency Service in processing DROs and means that only a tiny proportion of applications are refused. This compares with New Zealand, (the source of inspiration for the English model) which does not require the screening by approved intermediaries and where a substantial number of individuals are initially refused access. The Debt Advice agencies in England and Wales who function as approved intermediaries do the heavy lifting in ensuring that an individual qualifies for a DRO. The £10 allocated to the agencies from the £90 fee certainly does not cover their costs.
A cynic might argue that the DRO benefits primarily the Insolvency Service who have been able to outsource much of the work on the DRO to the approved debt advice agencies: the Service covers its costs of processing as required by the Treasury and the Ministry of Justice benefits by some debt cases being taken out of the courts, reducing their costs.
Analysis of the overall costs and benefits of Debt Relief Orders touches on several policy issues. First, it focuses on the needs of lower-income groups, so that we ought to understand how this procedure fits within existing social safety nets. Second, the availability of the DRO addresses access to justice concerns, namely that poor individuals should have equal access to debt relief compared with middle class individuals. This was a rationale for the introduction of the original ‘poor person’s bankruptcy’ in England and Wales, the administration order in 1883, to provide low-income individuals with access to debt relief as an alternative to imprisonment for debt. Yet the administration order did not live up to its promise so the question is whether the DRO will suffer a similar fate and fail to meet its objectives of a fresh start and financial inclusion.
It is however difficult to carry out an objective study of the DRO since a key aspect would be interviewing over time a random sample of debtors in order to test whether the DRO provides a fresh start and financial inclusion. Although all DROs are required to be recorded on the public insolvency register, accessing the register is by name, which creates substantial problems with sampling. Accessing individuals through debt advice agencies skews the sample since it will represent only those individuals using the particular agency. The Insolvency Service probably does not have the resources to conduct a comprehensive study of the DRO so that we have only partial accounts of its operation and success.
The absence of reliable studies of the DRO becomes more worrying, given the proposals for the introduction of a breathing space, and a statutory debt repayment plan (see e.g. here). Their additions will add a further complexity to the English system of debt relief. Finally, the DRO has been used as an international model for several jurisdictions modernising their bankruptcy laws. Thus India has transplanted a ‘no asset’ procedure into its recently reformed Bankruptcy Act based closely on the English model. South Africa has also proposed a similar scheme. Whether the DRO will be successful in these different contexts remains unknown. Systematic evidence based policy is thin in this area.
What can we learn from the history of regulation of small sum high-cost lending? Anne Fleming, in a thoughtful, carefully researched, and stimulating book, City of Debtors examines the history of regulation of ‘fringe finance’ in the US since the early twentieth century. Fleming argues that Americans are torn between concerns to protect working class and poor debtors from exploitation by high-cost credit, while still permitting access to credit, and allowing individuals to control their own financial lives. She highlights a number of continuing themes in the history of credit regulation, including regulatory arbitrage and reforms as often representing a coalition of reformer and lender groups.
Her narrative begins with progressives’ concerns at the beginning of the 20th century with salary lenders (modern payday lenders) who provided short term loans to urban workers usually in contravention of the usury laws. In response to public concern, reformers collaborated with ‘high-road’ lenders to develop the model Uniform Small Loan Law with generous price caps, as a legitimate method for providing small loans to the working class. The price caps reflected the views of reformers (The Russell Sage Foundation) that it was inherently costly to offer small loans to poor consumers and that this would attract capital to the industry. Licensing of a limited number of lenders gave stability to the industry, reducing incentives for excessive competition.
This reform represented a confluence of lender and reform interests, with lenders interested in stability and legitimacy and indeed viewing the law as constituting the industry. In order to deter unlicensed loan sharks from undercutting the law, severe sanctions were introduced for failure to comply with the requirements of the Act, including the unenforceability of any credit contracts. The need for such strong sanctions was based on the theory that low income individuals would be unlikely to challenge loan sharks through the courts.
Regulatory arbitrage and regulatory circumvention existed throughout the twentieth century. The time-price doctrine in US law (the price depending on whether the purchaser paid cash up front or over time) historically exempted sales finance from the usury law resulting in irrational distinctions between different forms of financing purchases, and offering incentives for the creation of fake instalment sales to get around usury laws. Although small loan interest rates were regulated from the 1920s , sales finance was relatively unregulated, and often did not disclose the costs of lending. Certain parts of the sales finance business became associated with practices similar to those which stimulated the English Hire Purchase Act 1938. Known as ‘chain repossession’ in the US and the ‘snatch back’ in the UK, sellers repossessed goods when individuals fell behind on a repayment notwithstanding that borrowers had repaid most of the debt, with the seller subsequently reselling the goods at a profit. The seller in the US might also take a wage assignment against the borrower which if enforced could result in loss of employment. Regulation of these practices was often justified as protecting individuals from becoming a public charge on the state.
In later eras, rent-to-own and leasing companies would attempt to circumvent the protections in retail instalment sales law. The Federal structure of the US offered further opportunities for arbitrage. Thus some early salary lenders in New York structured their loans to be governed by the law of the state of Maine which did not have usury ceilings. And in the 1970s, a bank successfully convinced the Supreme Court in Marquette National Bank of Minneapolis v. First of Omaha Service Corp. that banks, by chartering in a state without usury ceilings, could export that rate throughout the country.
The book provides a rich analysis of the subsequent decline of the Small Loan law and the development of credit law as part of the ‘law of the poor’ in the 1960s, when credit exploitation of black and minority consumers, often through door-to-door selling, was attacked under the unconscionability doctrine (see here )and the Supreme Court used the due process clause to establish minimum standards in credit enforcement. But the book also demonstrates the limits of litigation and the need for legislation, as well as the difficulties of policing the ‘fly-by-night’ operator. The book concludes by discussing the rise of the check cashers and modern payday lenders which have, according to one payday lender cited in the book, become “an adjunct of the welfare system”.
Credit has historically functioned as an informal safety net in the US (see here) with a reluctance in the US to provide state subsidised lending for the poor (although the US tax system was used to provide generous tax subsidies for middle class borrowers). Fleming highlights a belief among some groups that state provision might undermine an individual’s dignity, and result in the ‘stigma’ of welfare. Fleming concludes that the contemporary challenge for policy makers is how to regulate small sum lending in ‘a world in which welfare and small sum credit are the two sturdiest life rafts available to those drowning in the choppy waters at the edge of the economy’.
The book is a valuable contribution to debates on high cost lending even if it does not provide any solutions. It might have benefited from further engagement with theories of the role of consumer credit in contemporary capitalism. For example how would this history of high-cost credit fit with Soederberg’s description of the US as a “debtfare state” with credit as a form of secondary exploitation of the surplus population?
What relevance does this US history have for the UK?
Many of the themes identified also can be identified in UK credit history such as regulatory arbitrage and legislation representing a confluence of industry and consumer groups. In the 1950s some finance companies attempted to avoid the bite of regulation by constructing their hire-purchase agreements as hires. The recent rise of auto log-book loans exploits a loophole in protections for consumers against seizure of their goods. Reforms which represented a congruence of industry and consumer interests include the 1938 Hire Purchase Act, the outcome of a Bill promoted by Toynbee Hall (see here) an organisation working with poor debtors and the Hire Purchase Trade Association. The Consumer Credit Act 1974 was supported by both finance groups and consumer groups. In both cases these Act gave legitimacy to the credit industry as well as providing consumer reforms.
The UK never developed a Small Loans Law, although social reformers such as Dorothy Keeling urged Parliament in the 1920s to follow the US model as a solution to problems of illegal moneylending in large industrial towns such as Liverpool.
The UK also faces the contemporary challenge of regulating high-cost credit in a shrinking safety net where the poor continue to pay more (see the recent Office of National Statistics study here). The Financial Conduct Authority has capped the cost of payday loans, promises to cap the cost of logbook loans, but is not certain whether to regulate the price of home credit and overdrafts. Even with price caps, credit remains costly for individuals in these markets. The recent Treasury committee report did not identify any ‘silver bullets’ for addressing this question, although more secure employment and reasonable housing costs might be a start. It is not obvious what is the solution. The suggestion that Housing Associations might provide lower cost appliances to compete with the rent-to-own companies merits further study. The welfare state in the UK did historically attempt to protect low income individuals through social grants, and subsidies, but increasingly individuals are being left to the credit market to make ends meet.
Consumer credit law is complex partly because of regulatory arbitrage and historical attempts at circumvention. Given the incentives to circumvent regulation and the assumption that individuals would be unlikely to bring actions for contraventions of rules, legislators often inserted strong sanctions in laws such as the Moneylenders Acts, similar to the Uniform Small Loans Law. Undoubtedly this had value but it also provided opportunities for individuals to reject agreements on technicalities. Given the seeming individual injustice in these cases, judges were reluctant to apply the letter of the law resulting in tortuous interpretations. Successive generations have attempted simplification. This was the objective of the Crowther Committee which deplored the technical morass of interpretation under the earlier Moneylenders Acts. But the Consumer Credit Act 1974 carried forward significant complexity which resulted in litigation often focused on technicalities rather than substantive fairness. The FCA developed its high level principles such as treating customers fairly as a response to the technicalities of detailed rules, inviting firms to embed these in their products and treatment of consumers. The Payment Protection Insurance scandal indicated the limitations of this strategy with the finding that managers in many cases received substantial commissions for selling insurance policies to consumers.
Finally there is the role of competition. Contemporary reformers generally assume that vigorous competition in credit markets is good for consumers. Measures such as the Uniform Small Loan Law restricted competition and were criticised subsequently for doing so. In the UK the finance houses in the 1950s ran a cartel which limited competition. The Crowther Committee believed that vigorous competition would benefit consumers and reduce the price of credit. This had some truth. However, historical evidence does suggest that increased aggressive competition in credit markets often leads to a lowering of credit standards and a search for methods of increasing profits through exploitation of consumer biases. The PPI scandal in the UK occurred in a highly competitive market where competition on price, among other factors, created incentives for firms to find other methods of maximising profits for shareholders through the highly profitable sale of credit insurance.
The Scottish government has once again trumpeted the success of its Debt Arrangement Scheme (DAS) in a press release earlier this week. The Minister for Business, Innovation and Energy, Paul Wheelhouse, states that it ‘is the only statutory debt management programme in the UK and we are rightly proud of its success in providing a viable option for those seeking to pay their debts without plunging into insolvency’. Lord Wilf Stevenson, chair of Step Change Debt Charity also lauds the Scottish scheme as an example of how things work better in debt management North of the Border (see here) and the Treasury recently completed a consultation on the possible introduction of a similar scheme in England and Wales.
But what evidence exists to support these optimistic views on the Scottish scheme?
The Scottish Debt Arrangement Scheme (DAS) is a statutory debt management plan. Its benefits include a stay on individual enforcement action by creditors, the freezing of interest and penalty fees and the possibility of a debtor retaining a home. Plans can be imposed on creditors by the administrator (the AIB) if creditors do not consent, provided the plan is fair and reasonable. Individuals make a single payment through a payments distributor (one of four private sector organisations awarded the contract by the government) who can charge a fee of 8 percent. An individual must consult an approved money advisor before commencing a DAS. Both public and private advisers now act as intermediaries with the majority of applications now handled by private advisors (dominated by a few specialists) who can charge a fee. Debts can only be written off after 12 years, if seventy percent of outstanding debts have been paid. Data from 2012 indicate that they last on average 6 years 8 months. Fifty-four percent of users are female with an average age of 44 a median level of debt of £12, 913, making an average monthly payment of £238.
The Scottish government highlights the benefits of the plans for creditors, claiming a 90 percent return rate. However, this is misleading since it assumes that all plans are completed. Data (see Table below ) which I obtained from the Scottish Accountant in Bankruptcy suggest that at least 25-30 percent of files are revoked and the dominant reason for revocation is failure to pay when due. Thus of the 3,939 cases commenced in 2012-13, 1139 had been revoked by 2017. In addition, given the long time scale of these plans the amount recovered should be discounted and it is possible that some of these debts have already been written off by creditors and bought by debt buyers who will profit from any recovery.
These long term debt plans may be producing modest income for individual creditors but one must question whether it is socially beneficial to have individuals shackled to a repayment plan for so long. The Scottish government is committed to the principle of ‘can pay should pay’ and Fergus Ewing (then the relevant Minister) celebrated the fact that many individuals were choosing the longer road of the DAS because it demonstrated that ‘most people want to pay off their debts when they can’ (at 25929) and that ‘bankruptcy should not be an easy option’ (same). However these comments neglect the growing international literature (see discussion here and here ) on the economic and social benefits of bankruptcy providing a swift fresh start for debtors. There is a danger of increasing the already significant social stigma associated with bankruptcy when there should be greater recognition of its value as a safety net in contemporary economies with high levels of household debt.
Individuals generally do want to repay their debts but many individuals who are in debt trouble suffer from continuing problems in terms of unstable employment. Long term debt problems have effects on the health of individuals. Behavioural studies suggest that individuals are often over-optimistic and will underestimate the difficulties of maintaining repayments over a long period. Their credit rating will continue to be low after they complete the plan and is unlikely to be better than if they declared bankruptcy.
Unfortunately almost no systematic studies exist (see here) of the experience of individuals who have succeeded or failed on DAS (and ideally a control group who could have but did not choose to undertake a plan). The 2012 study did suggest that there was a trend among young individuals to take out a DAS to repay smaller amounts of debt and a DAS could be useful for an individual caught up in high cost credit problems. So the DAS may be useful for some debtors. Or it may represent simply a benign state sanctioned collection agency and, given the long length of the repayments–almost a form of ‘debt peonage’.
But once again we encounter the failure by governments to develop good evidence based policy in the area of bankruptcy. The danger is that a form of DAS (with its “breathing space”) is layered on to the unnecessarily complex system of personal insolvency alternatives in England and Wales without a reappraisal of the existing system.
Scottish DAS Agreements: Closed, Live and Revoked
Source: Scottish Accountant in Bankruptcy.
This post is a video. Here at: https://www.youtube.com/watch?v=_sCAG3Cn0O0&index=24&list=PL_voamVqJ_ZyVoZdGh4ov5u1PseEJxwEX
Damning report on debt management advice by Financial Conduct Authority–need for comprehensive review of insolvency alternatives
The FCA published on Thursday 25th June a damning thematic review on the quality of debt management advice, concluding that the quality of advice was of an ‘unacceptably low standard’. Advisors often did not make an adequate assessment of individuals’ revenues and expenditures or give balanced information about insolvency alternatives. For example, they often reinforced customers’ initial reluctance to consider bankruptcy and played on misconceptions about bankruptcy to deter them from this alternative. The FCA reported ‘many instances where customers were recommended very long-term debt management plans (often many decades…) when debt relief solutions are likely to have been more appropriate but adequate information and advice was not provided”(para 4.55). In one case a debt advisor failed to correct a debtor’s misconception about the effects of bankruptcy and recommended a debt management plan lasting 125 years! Firms often had incentive structures for selling debt solutions.
The study was primarily of the fee-charging debt management industry but it was also critical of those firms providing free debt advice to consumers, indicating that there was ‘scope for material improvement’.
These findings are perhaps not surprising given the continuing concerns expressed about practices by some debt management companies by Parliamentary Committees and the Office of Fair Trading. Studies in other countries have raised similar concerns. In a recent article Stephanie Ben-Ishai and Saul Schwartz studied how not-for-profit Credit Counselling Agencies in Canada gave advice to individuals with debt problems. Using carefully scripted mystery calls to credit counselling agencies Ben-Ishai and Schwartz found that the agencies surveyed did not present the options for dealing with a debtor’s financial in a complete and impartial manner and did not present bankruptcy as a viable option. The focus was on ‘fitting the caller into the requirements’ of a debt management plan. They concluded that although the agencies portray themselves as debtor-friendly they operate rather as collection agents.
A fundamental concern in England and Wales raised by the FCA report is whether these practices by debt management companies are undermining public policy on debt relief by steering individuals to debt management plans rather than permitting individuals to make a ‘fresh start’ through bankruptcy or a debt relief order and becoming productive again. Joseph Spooner and myself have commented elsewhere on whether England and Wales has struck the right balance between the wide variety of repayment plans, sometimes lasting many years, and the straight discharge of most debts. Almost one-third of Individual Voluntary Arrangements fail to complete. Many individuals may choose a repayment plan because they assume it will be better for their credit rating (and they may be able to retain their home) but credit reference agencies make little distinction between bankrupts and those who have been on repayment plans. The complexity of the English system with its many alternatives also creates difficulties for individuals choosing the best option, and increases the power of private and public intermediaries in the system, whose financial incentives may not align with public interest concerns.
Several countries (Canada, US, Scotland) now include debt counselling as part of the individual bankruptcy process but evidence is limited as to its beneficial impact.
Many official inquiries have supported the integration of counselling in the debt enforcement system. In the 1960s and 70s counselling was justified by the perception of a debtor as needing assistance in managing her financial affairs and possibly having wider problems in coping with life. The English Payne Committee (1970) proposed a social service office for debtors as part of a state enforcement office based on ‘abundant evidence that many debtors incur and fail to pay their debts because they are inadequate personalities or irresponsible in managing their affairs… They need to be assisted to financial health and stability.” (para 1210) Social workers would ‘perform for financially incompetent or inadequate or irresponsible debtors, the functions which are discharged for more successful members of the community by bank managers, accountants or solicitors’ (1216). The influential Brookings Commission study (1971) in the US proposed that financial counselling should be available to all debtors after finding that 31 percent of debtors attributed their problems to poor debt management, and the US Bankruptcy Commission(1973) proposed that access to bankruptcy should be dependent on a debtor receiving counseling by the new administrative agency which would administer the bankruptcy process. The Bankruptcy Reform Act 1978 contained no formal requirement for counselling. The US National Bankruptcy Commission in the late 1990s endorsed the introduction of counseling on a voluntary basis.
Canada pioneered in 1992 the legislative introduction of two counseling sessions during bankruptcy for individual bankrupts (see here). The objective was to prevent repeat bankruptcies and to further rehabilitative goals of behavior modification. The Insolvency regulator (Office of Superintendent of Bankruptcy), debt counselling agencies and the Canadian Bankers Association supported its introduction. In Canada the trustee (or their delegate) must now: (1) make a pre bankruptcy assessment outlining options including that of a consumer proposal (repayment of a portion of debt usually over three years), (2) provide an initial counseling session shortly after bankruptcy is declared entitled consumer and credit education and (3) a second session shortly before discharge which normally takes place nine months after the declaration of bankruptcy. Counselling is financed by a fee which comes out of the bankruptcy estate– $85 for each stage of counselling-usually made from income payments by bankrupt. Ninety percent of the sessions last under one hour. Counselling is a condition for receiving a discharge. The current Directive (OSB 1R3) defines it as ‘educating debtors on good financial management practices, including the prudent use of consumer credit and budgeting principles, developing successful strategies for achieving financial goals and overcoming financial setbacks and where appropriate making referrals to deal with non-budgetary causes of insolvency (ie gambling, addiction, marital and family problems)’.
Has the Canadian system of counselling achieved its objectives? It is difficult to measure this rigorously because one ideally needs a control group who go through the process without counseling. In early reviews bankrupts generally were favourable in their assessments of counseling. But does counselling change behavior or result in fewer repeat bankruptcies? The only rigorous study of the Canadian system using a control group, conducted by Saul Schwartz and published in the American Bankruptcy Law journal in 2003, concluded that counseling did not lead to ‘any appreciable improvement in future creditworthiness’ and ‘has little effect on repeat bankruptcies in the first five years after an initial bankruptcy filing’. In Canada the overall repeat filing rate has increased from 10 percent in 2002 to 15 percent in 2011 and 16 percent in 2012. Notwithstanding these data a recent evaluation in 2013 by the Canadian Department of Industry argues that counselling has a positive impact because ‘debtors found the sessions useful’. The report admits that ‘determining the effectiveness of mandatory counseling is challenging because it is difficult to disentangle the results of two counseling sessions from the broader changes that occur in a bankruptcy or insolvency’. The study suggests some short-term changes in understanding and behavior by debtors and notes that repeat bankrupts were slightly less likely to cite overuse of credit as a reason for bankruptcy. But the study is hardly a ringing endorsement for mandatory counselling for all bankrupts.
In the US the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) introduced mandatory counselling at the pre-bankruptcy stage as an eligibility condition for filing for bankruptcy and also required bankrupts to undertake a financial education course during bankruptcy as a condition of receiving a discharge. Pre-bankruptcy counselling is premised on the assumption that debtors turned too quickly to bankruptcy as a solution for their problems. The Act is vague on the contents of the financial education course but the Federal US trustee has promulgated rules which indicate that the course must include budget development, money management, wise use of credit (including distinguishing wants from needs), consumer protection, and coping with unexpected financial crisis. The financial education course must last a minimum of two hours but may be completed in person, over the phone, or through the Internet.
Michael Sousa in a recent article surveys existing pre- and post- BAPCPA studies of voluntary counselling in bankruptcy. He also presents the results of a qualitative study of the effects of the BAPCPA counselling requirements. Most debtors did not find the courses helpful. Pre-bankruptcy counseling was just ‘jumping through hoops’. It did not have the consequences hoped for by Congress–where debtors rethought their decision and entered a debt management plan. Rather it either confirmed the correctness of an individual’s decision to file for bankruptcy or helped to allay any fears about declaring bankruptcy. Most debtors thought that a two-hour financial education course was not enough to provide long-term effects and in any event was often inappropriate since many individuals filed for bankruptcy because of external economic changes unrelated to financial capability. Sousa concluded that the existing BAPCPA counselling requirements are ‘by and large misguided and are in desperate need of overhaul and reform’.
Scotland recently introduced counselling in the 2014 Bankruptcy and Debt Advice (Scotland) Act which Act will, according to the relevant Minister, Fergus Ewing, deliver ‘the most significant change to the bankruptcy process in Scotland for a generation and take us closer to making the financial health service a reality’ (more on this claim in a subsequent blog). Individuals must consult a money advisor before obtaining access to any statutory debt relief. The policy objective is that of ensuring that individuals are aware of all debt relief options, although I suspect that it is partly motivated by the objective of ensuring that individuals do not enter too easily into writing down debt rather than the statutory Debt Arrangement Scheme which will generally require full repayment (again more about this on a further blog). Financial education during bankruptcy is not mandatory for all debtors. Only repeat bankrupts within the previous 5 years, or debtors subject to a bankruptcy restriction order made against them must undertake a course. In other cases a trustee may refer a debtor to a financial education course where ‘the trustee considers that the pattern of behavior is such that the debtor would benefit from a financial education course or the debtor agrees to undertake a financial education course.’ The Scottish legislation recognises that counselling is not necessary for all debtors. This suggests that legislators do learn something from comparative experience, since they seemed to be aware of the criticisms of the US provisions.
England and Wales rejected counselling in the 2002 reforms primarily because most groups consulted opposed its introduction. Debtors may therefore experience a variety of advice before and during insolvency, depending on whether they seek advice in the public sector through Citizens Advice Bureaux, non-profit debt counselling such as Step Change, or a private intermediary.
The UK is sometimes contrasted with continental Europe where it is assumed that a more ‘social’ approach exists to counselling debtors. But this is not the case. Counselling is not an integral part of the French process. Although debt counsellors play a central role in Germany, the large demand for their services means that they function more as processors rather than being able to provide substantial financial counselling. In Sweden, a recent official report was very critical of the standards of debt counselling which are operated by municipalities.
Debt counselling in bankruptcy is a programme which in the abstract can attract a broad support. It is a policy around which a coalition of creditor, consumer and debt counselling interests can agree, and for regulators it gives a sense of purpose to the bankruptcy system–so the Scots view it as part of a ‘financial health system’. It is likely therefore to continue to be attractive but experience suggests an unwillingness by governments to invest significant resources in the project.
The credit counselling requirements are often based on the assumption that bankruptcy is a consequence of imprudent or unwise use of credit or the need for individuals to adapt their credit behaviour to more desirable norms. But this is clearly not the case for many debtors who are subject to adverse changes of circumstances, unforeseen health costs or small business failures.
The Insolvency Service released earlier this week statistics on Individual Voluntary Arrangements which provide over-indebted individuals the opportunity to repay over time a portion of their debts. Originally designed for individual business debtors, enterprising accountants transformed IVAs into a mass-produced consumer remedy in the early 2000s. In a recent submission to the Insolvency Service, Joseph Spooner and I raised questions about the extent to which IVAs serve the public interest. The recent IVA statistics underline these questions. The statistics indicate increasingly long IVAs of at least 5 years (the original model envisaged a three-year repayment plan). Only 33 percent of IVAs registered in 2008 had completed by October 2014. Over 35 percent of plans begun that year were terminated with the possible consequence of a subsequent bankruptcy for the debtor. These statistics are on their face troubling and demand further investigation. Perhaps the longer plans reflect the fact that individuals miss some payments because of a change of circumstance such as a period of unemployment or plans are modified. But these individuals might have been better to declare bankruptcy initially and make a swift fresh start, benefiting the economy from greater productivity and increased consumption.
Unfortunately no systematic empirical studies exist in England and Wales of the economic and social costs and benefits of IVAs. No studies have attempted to assess debtors’ experiences of IVAs and whether they have a genuine fresh start at the end of five years. Policy making on IVAs has been effectively privatised. The terms of IVAs are determined through private bargaining between creditor and debtor, against the background of a ‘protocol’ developed by bankers and insolvency professionals with modest input from public interest groups.