Filing: an overview of the changes due in force during 2015

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

Originally published 12 August 2015 and last updated on 25 April 2016.

Partial suppression of date of birth information – first implementation date – 10 October 2015

The Small Business Enterprise and Employment Act 2015 ("Act") introduces new provisions into the Companies Act 2006 requiring the Registrar not to disclose the ‘day’ element of the date of birth of directors and of individuals on the PSC Register. The month and year of birth will still be publically available. The change aims to minimise the risk of personal information on the register being used to perpetrate identity theft and fraud. The provisions relating to the date of birth information of directors came into force on 10 October 2015. The provisions relating to the date of birth information of individuals on the PSC Register are likely to come into force when the PSC Register is introduced next year.

Although the day of the date of birth will not be generally available on the public record at Companies House:

• the full date of birth will still need to be included on information filed by companies with the Registrar;
• there will be no obligation on the Registrar to expunge information already on the public record as a result of filings made before the provisions come into force or to look through documents filed with it which do not require date of birth information to be included, to check that it is not being provided erroneously;
• the full date of birth will still need to be entered onto the company’s register of directors and PSC Register and so it will be available to anyone inspecting the company’s own registers; and
• following implementation of the provisions of the Act allowing companies to elect to keep their statutory registers at Companies House, the full date of birth will be available on the public record at Companies House where such an election has been made in relation to the register of directors or PSC Register. This will obviously be a key consideration for companies when deciding whether to hold these registers at Companies House.

The Companies (Disclosure of Date of Birth Information) Regulations 2015 which came into force on 10 October 2015 allow the Registrar to disclose full date of birth information to public authorities and credit reference agencies subject to certain conditions.

Changes to the filing procedure on the appointment of new directors and secretaries – implementation date 10 October 2015 – and resolving disputes over director appointments and registered office locations – 6 April 2016

Appointment of directors and secretaries and director appointment disputes: Under the existing law, when a director or company secretary is appointed (whether on incorporation or subsequently) the notice of appointment must include a consent by the director or secretary to act. The Act changes this requirement so that the notice of appointment must instead contain a confirmation by the company that the director or secretary has consented to act. These provisions came into force on 10 October 2015.

New provisions have also been inserted into the Companies Act 2006 requiring the Registrar, on receipt of a notice of appointment of a director, to contact the person named as a director and inform them that the Registrar has received notice of their appointment and provide details of their duties as directors. These provisions also came into force on 10 October 2015. Further provisions, which came into force on 6 April 2016 provide a simplified process by which the Registrar can rectify the register if the person concerned objects to their appointment. Unless the company can provide evidence that the consent was given, the presumption is that consent was not given and the register must be amended to remove the appointment.

Together, the changes streamline the process and mean that those who enter fraudulent information on the appointment form can be prosecuted. Proposed directors will be contacted by Companies House at the outset of their appointment which fulfils the twin aim of allowing fraudulent appointments to be identified immediately and also provides an opportunity for Companies House to provide the director with information relating the office and duties of a director, which should ensure directors are better educated about their role and responsibilities.

For company secretaries and those dealing with the administration of new appointments it will mean that from 10 October 2015 the company will no longer be able to rely on a signature on the notice of appointment as evidence of a director’s or secretary’s consent to act. Instead separate consents will need to be given and retained by the company in case they are required to prove consent to the Registrar.

Registered office disputes: As well as providing a simplified process for amending the register where there is a dispute as to the appointment of directors, from 6 April 2016 the Act and the Companies (Address of Registered Office) Regulations 2016 here introduce a new process for the rectification of the register where the address of a company’s registered office is in dispute. Guidance on the process is also expected from Companies House.

This has been introduced following responses to the 'Red Tape Challenge' which highlighted the difficulty in dealing effectively with companies which have been registered with registered office addresses which they are unauthorised to use. As well as causing distress for those people legitimately using that address, this practice also undermines trust in the reliability of the information on the register.

Following a successful application, the Registrar will be obliged to change the company’s registered office to a default address and the detail of how this default address will operate is also to be provided by regulations.

Accelerated strike off procedure –implementation date – 10 October 2015

The Companies Act 2006 provides a process by which the Registrar can remove from the register companies which appear not to be carrying on a business. The process involves a series of two consecutive notices being served on the company, each with a given timescale for response. If no response is received to either communication, a notice is published in the Gazette and, unless cause is shown to the contrary within three months of publication, the company is struck off.

Currently, the process can take up to six months which was considered too long, particularly when dealing with companies where it proves impossible to contact the company or its directors, for example, where the registered office is at an unauthorised address.

The Act shortens the timescale within which a strike off can occur. The period of time within which a company must respond to each of the Registrar’s notices has been reduced from one month to 14 days and the period of time which must elapse following publication of the notice in the Gazette has been reduced from three months to two months. Compulsory strike offs will be possible within approximately three and a half months.

In addition, the process under which companies can voluntarily apply to be struck from the Register and under which companies being wound up can be struck off, is also being streamlined by one month. This will be achieved by reducing the period of time which must elapse following publication of the notice of strike off in the Gazette from three months to two months.