FOI release

FOI21/22-154 - Request for info on working with vulnerable customers

Updated 14 July 2022

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This publication is available at https://www.gov.uk/government/publications/insolvency-service-foi-responses-january-to-march-2022/foi2122-154-request-for-info-on-working-with-vulnerable-customers

Our ref: FOI21/22-154

Date: 02 March 2022

Dear

1. Re: Freedom of Information Act 2000

Thank you for your email of 07 February in which you requested from the Insolvency Service:

(1) Does the OR/Insolvency Service owe any Duty of Care towards the person names on the bankruptcy petition?

If telling this person, or requiring him to assist you could cause him to have a mini-stroke or full stroke and suffer life-changing injuries or even death, do you not have an obligation to deal with this differently

  • Use any existing Deputy

  • Get a Deputy appointed

  • Approach the court for guidance / directions?

(2) A Deputy has exclusive powers over “P”s property & affairs (outside of court). “P” is not allowed any control or knowledge of his P&As. “P” is not allowed to co-operate with the Official Receiver or sign anything that the OR might give “P” to sign. In such circumstances is it your policy to continue to pursue “P” or pursue only his Deputy?

(3) Where you have (ample) proof that the person lacked litigation capacity and had no litigation friend during all stages of the bankruptcy proceedings (statutory demand onwards), and so any bankruptcy order had to, necessarily, be unlawful (contrary to CPR21.3(4)), what is your policy to deal with the situation. The person lacking litigation capacity will have no right to make any applications to set aside, annul or rescind any bankruptcy order

(4) Is it your policy that you have a duty to be Full & Frank in all of your applications, where the “person” cannot participate in the hearings? ie: to tell the court about the full facts of the case - ones that support and ones that undermine your application?

(5) Do you have a Duty of Candour to the Court?

(6) If you know that a person, like me, knows a great deal about the case, do you feel obliged to find out what that is, to have that person put it down in a Witness Statement and to provide it to the court, so that the court may know about and get a fuller picture of the situation?

(7) The OR has submitted a report to the court citing me. The citations are wrong. In such situation, in general, what is the policy of dealing with such matters where the person being cited, contests that they ever said any such thing? Do you knowingly tell the court something you know to be false?

(8) Have any Judicial Reviews, involving you, ever had to deal with such situations.+ what were the outcomes (precedents etc) – this is in the context of vulnerable people being subject to bankruptcy orders

(9) Have any Court Rulings, involving you, ever had to deal with such situations.+ what were the outcomes (precedents etc)

(10) Can you tell me what the policy of the Insolvency Service / Official Receiver is:

  • Where someone has been far too ill for years to deal with such matters

  • Where the person has a Deputy to deal with such Property and Affair matters exclusively instead of him

  • Where someone is likely to remain far too ill to deal with such matters indefinitely, quite likely permanently

  • Where trying to get him to deal with such things, would seriously risk his health (mental and physical - stress induced strokes could cause severe injury even death)

  • Where he is unlikely to be able to help the OR even if he were to recover enough to know about any of this, yet alone engage with the OR

  • Is it your policy to allow a Bankruptcy Order to remain undischarged until someone dies? (even if this might not be for decades)
  • What is your policy once it becomes clear that a Bankruptcy Order serves no useful purpose? and the victim has no capacity to do anything about it themselves
  • Does the Insolvency Service / Official Receiver not have any duties towards the court in bringing these issues to the court’s attention for them to be dealt with properly?
  • When making such an application, does the Insolvency Service / Official Receiver not have a duty to the court to provide them with a complete picture of what is happening? Aspects that run for and against any Bankruptcy Order existing / Persisting?

(11) Do you have a Duty to progress any Bankruptcy case, or can you “sit on it” indefinitely. Where such issues need resolving, in order to make progress, do you not have a duty to take steps to resolve them. Surely you can’t just do nothing?

Your request has been dealt with under the Freedom of Information Act 2000 (FOIA).

I can confirm the agency holds some information relating to your request. Information you have requested, as far as it is held, is at the link below and in the attached document.

I can confirm that the Official Receiver does not keep a record of court rulings or judicial reviews that concern them.

I have attached internal guidance for working with vulnerable individuals, including those with mental health conditions. No further policy is recorded in the matters you refer to in your request.

Please note FOIA only applies to recorded information, it does not require public authorities to answer a question unless recorded information exists.

Guidance on dealing with case administration matters for Insolvency Service staff is available at Technical guidance for Official Receivers.

The guidance is for the use of Official Receivers in England and Wales and Insolvency Service staff. It is not exhaustive, and it may be appropriate in some circumstances for the Official Receiver to deviate from this guidance. Each case is considered on the individual circumstances, and there is no further recorded policy on the matters raised.

If you are not satisfied with the response we have provided you and would like us to reconsider our decision by way of an internal review (IR), please contact our Information Rights Team at foi@insolvency.gov.uk or by post at:

Information Rights Team
The Insolvency Service
3rd Floor
Cannon House
18 Priory Queensway
Birmingham
B4 6FD
United Kingdom

You also have the right to contact the Information Commissioners Office (ICO) if you wish for them to investigate any complaint you may have regarding our handling of your request. However, please note that the ICO is likely to expect an IR to have been completed in the first instance.

Kind regards

Information Rights Team

The Insolvency Service

The Department for Business, Energy and Industrial Strategy, Official receivers and the Adjudicator are Data Controllers in respect of personal data processed by the Insolvency Service. For the details about how personal data is processed by the agency, please see the full Insolvency Service Personal Information Charter here: https://www.gov.uk/government/organisations/insolvency-service/about/personal-information-charter

2. Guidance for people on dealing with customers with mental health problems

Just as anyone could, some of our customers may have some form of mental health problem. Many people with mental health problems are able to manage their condition and minimise its effect on their lives. However, a mental health problem may affect a person’s thinking, emotional state and behaviour, and disrupt their ability to work, carry on their usual personal relationships and everyday life.

This content has been design to help us support our customers and behave appropriately.

3. Asking customers about mental health

In some cases customers may not disclose a mental health condition, but you may notice something in their behaviour that indicates that they are experiencing some form of distress. Some common indicators of a condition are that the customer may:

  • appear or sound distressed, disturbed or distracted
  • be talking incoherently or laughing inappropriately
  • appear to be having illogical or irrational thought processes
  • seem over-excited, euphoric, irritable or aggressive
  • sound or look dazed, withdrawn or switched off
  • be fidgety, restless or jumpy
  • keep repeating themselves or obsessing
  • not appear to be taking information in
  • appear to respond to experiences, sensations or people not observable to others
  • be telling you things that they believe to be true but in reality are extremely unlikely.

If you notice or suspect that a person may have mental health issues, you can ask them. It is important to handle the situation sensitively. You may consider asking questions such as:

  • “Is there anything specific in terms of your health or personal circumstances that impacts on your situation?”
  • “Other than your financial situation is there anything else in particular causing you to feel like this?”

Be honest and sensitive and keep the conversation open. If the customer chooses not to take advantage of this opening to confide in us then we should not push them on this. But remember, you must not make assumptions or a diagnosis.

3.1 Emotional distress including suicidal threats

More detailed advice and guidance on how to deal with a customer if you are concerned for their wellbeing can be found on the intranet here. [Links to “Responding to distressing contact/ telephone calls” below]

4. Asking the customer for evidence of their mental health condition

In some cases we may require the customer to provide evidence of their mental health condition to help us decide on the appropriate action to take. This is not required as a matter of course, but may be useful in helping you reach a decision on how to take the matter forward in potential investigation cases.

You can either ask the customer to supply the information or seek their permission to write directly to their doctor. Where it is appropriate to obtain evidence you should make clear to either the customer or their doctor what information you need. Evidence should seek to cover the following areas:

  • confirmation of the nature of the illness and details of the condition;
  • how it affects their ability to carry out their normal day-to-day activities, particularly in relation to their ability to manage their affairs and any dealings with the Insolvency Service including whether an individual is able to be interviewed, their ability to deal with any potential proceedings etc;
  • prognosis (in some cases we can suspend action awaiting a likely improvement or end of treatment);
  • what support we may need to provide;
  • anything else that is relevant to the case.

In most cases we will seek this information from an individual’s own health professionals, but depending on the stage of the proceedings, we may ask the individual to agree to be seen by another medical practitioner, which the Insolvency Service pays for. A report is then sent to the individual, Insolvency Service and the court to help inform the public interest decision making.

You must also:

  • allow time for the evidence to be collected
  • temporarily suspend unnecessary contact with the customer or any enforcement action whilst they collect the evidence.

Evidence of a customer’s mental health condition can come from a number of sources. Acceptable sources include:

  • a doctor
  • any mental health professional
  • a social care professional
  • a voluntary sector organisation, such as Citizen’s Advice - providing that they have satisfied themselves, from one of the sources above, that the mental health condition is genuine.

The first indication of a problem may arise from a phone conversation. You may find a letter along the lines of the one below useful. It can be adapted to suit individual circumstances.

During a conversation on [insert date] you told me that you are currently under medical care. In order to deal with your case as efficiently as possible and be more responsive to your needs it would be helpful if we knew more about your health and how it affects your ability to deal with us and manage your affairs.

We would therefore like your permission to write to your doctor or health care professional for more information. We would be grateful if you could confirm in writing that you are happy for us to proceed, and include the contact details for your health care professional.

If you find it would be helpful to speak to me directly, I am happy to do so. Please call me on [insert telephone number] or provide me with your contact number and let me know a convenient date and time to call you.

If you find it difficult speaking to us directly, with your permission, we can discuss your affairs with a personal representative, such as a friend, family member, or debt advisor. You may find it helpful to speak to an independent organisation for free advice, such as:

5. Dealing with third parties

Some of our customers want or need to use a representative/intermediary to help them access services. If a customer wishes to use a representative/intermediary, we should recognise this and work with them.

A representative/intermediary may include:

  • friends, relatives or carers
  • voluntary sector organisations
  • mental health professionals and social care professionals.

As with any third party we must not disclose any information unless we have the customer’s consent to do so. Where consent has not been provided contact should be limited to matters regarding our processes/ policy generally.

Where a third party has consent from the customer to speak to us we should try and speak to them and resolve any issues as much as possible.

5.1 Dos and don’ts of using intermediaries

Do:

  • treat each case on an individual basis;
  • offer help, but do not make assumptions;
  • speak to your line manager if you have any doubt;
  • make a written record of what was disclosed, to whom, and when – in all cases.

Do not:

  • disclose information if you have any reasonable doubt;
  • be pressured into giving information – refer the call to your line manager;
  • assume written consent is for an indefinite period;
  • apply blanket policies in disclosing to representatives/intermediaries. In all cases decisions must be made on an individual basis.

6. Disclosure of a mental health condition

Customers may be reluctant to disclose a mental health condition. However, it is important that we hold such personal data on our files. To do this the law requires us to ask for the ‘explicit consent’ of the individual first. If you are told about a condition you may find the following technique useful:

  • Thank them for the information and treat the customer with empathy and tact. A simple statement along the lines of “Thanks for telling me that. It will help me deal with this matter in the most appropriate way” will suffice.
  • Explain how their information will be used (this is a legal requirement); you should:
    • o explain that it will allow us to deal with the case as efficiently as possible, and be more responsive to their needs; it should also save them having to repeat this information to any other members of staff at a later date
    • o inform the customer that the information will be stored in a note on our system and will be available to other staff working on their case.

Allow the customer time to ask questions.

Following the above guidance will ensure that you are compliant with the Data Protection Act 1998, which requires organisations to collect, use, retain or dispose of personal data fairly and legally. Under the Act, information about mental health is considered sensitive personal data and is subject to stringent restrictions.

7. Reasonable adjustments / providing services for customers with a mental health condition

Remember, we need to anticipate the needs of customers with mental health conditions, not wait to be asked. Be sensitive. It is important to treat each person as an individual and adapt our position to meet their needs as far as possible.

If customers are unable to access, or travel to, departmental or partner premises we should provide alternative interview arrangements: for example, by telephone, at their home or other accessible location. The provision of alternative arrangements should be discussed with your line manager. You could also consider whether it is possible to be flexible with timings and dates.

8. Recording evidence received

When you receive medical evidence you should save the information on the case file and protect it as you would any other sensitive data.

9. Types of mental health issues we may encounter

Mental health problems will be covered by the Equality Act 2010 if the impairment has a substantial and long term adverse effect on the person’s ability to carry out normal day to day activities.

Many people with mental health problems are able to manage their condition and minimise its effect on their lives. However, a mental health problem may affect a person’s thinking, emotional state and behaviour, and disrupt their ability to work, carry on their usual personal relationships and everyday life.

The most frequently occurring mental health problems are:

  • depression - a long lasting, low mood that interferes with the ability to function or take an interest in things
  • anxiety - where normal feelings of concern, worry and fear are intensified to a debilitating level and can bring on physical symptoms such as heart palpitations and pain.

Other conditions you may encounter include:

  • panic disorder - defined as a sudden episode of intense fear or discomfort with physical symptoms such as nausea, chest pains, unbearable fear and shortness of breath
  • obsessive compulsive disorder (OCD) - the individual is usually aware of their obsessive behaviour being excessive or unreasonable but nonetheless being so pervasive as to interfere with the ability to function
  • bipolar affective disorder - a severe mood disorder characterised by extreme highs and lows with normal moods in between
  • schizophrenia - symptoms can include disordered thoughts, difficulty in concentrating and following instructions, delusions, hallucinations, apathy and poor social functioning
  • dementia - a degenerative disorder increasingly affecting a person’s ability to function until they become entirely dependent on others
  • post traumatic stress disorder (PTSD) - often linked to military or emergency services but defined as any event resulting in a person being adversely affected by what they have experienced. People can suffer flashbacks, panic attacks and other acute symptoms.

The above list is not intended to be exhaustive and you may well encounter people with other types of mental impairment.

9.1 You must always concentrate on how a mental health issue affects the person’s ability to deal with their affairs and not on the fact that a condition may exist.

Learning disabilities will be covered by the Equality Act 2010 if the impairment has a substantial and long term adverse effect on the person’s ability to carry out normal day to day activities.

You may come across the following learning disabilities:

  • autism - a lifelong developmental disability that affects how a person communicates with and relates to others
  • dyslexia - a very broad term defining a learning disability that impairs a person’s fluency or comprehension accuracy in being able to read
  • Asperger’s syndrome - a form of autism that causes difficulties with communication.

The above list is not intended to be exhaustive and you may well encounter people with other types of learning disability.

9.2 You must always concentrate on how a learning disability affects the person’s ability to deal with their affairs and not on the fact that a condition may exist.

10. Very vulnerable customers and complex cases

In most cases, it should be possible to resolve issues and agree a suitable approach locally through the line management structure; however, some cases may involve complex issues and you may want further guidance and help in deciding the best way forward.

If you need further advice about a case you should contact your line manager.

10.1 Other sources of help and information

The Insolvency Service has arranged training with the mental health charity MIND. For more information on how to access this course or its training materials please contact the TCL team.

11. Who can make decisions when the person does not have the mental capacity?

In rare cases the third party may explain that even if reasonable adjustments are made the person would still be unable to deal with their affairs. In these circumstances you must not disclose any information to the third party unless they can provide one of the following documents.

  • A letter signed by the person that explicitly authorises a named individual or organisation to act on their behalf.
  • A document granting Power of Attorney.
  • An order of the Court of Protection (in England, Wales and Northern Ireland) or an Intervention Order or Guardianship Order (in Scotland under the Adults With Incapacity (Scotland) Act 2000) appointing the named individual to deal specifically with the person’s affairs.

11.1 Who can make decisions when the person does not have the mental capacity and there is no power of attorney?

There may be difficulties when a person does not have the mental capacity to give consent. For example, they may be suffering from Alzheimer’s or dementia and unless someone has a lasting Power of Attorney then their affairs cannot be dealt with by another person on their behalf.

The Court of Protection makes decisions for people who are unable to do so for themselves. It can also appoint someone (called a deputy) to act for people who are unable to make their own decisions. These decisions are for issues involving the person’s property, financial affairs, health and personal welfare.

12. Responding to distressing contact/ telephone calls

Some customers may be extremely emotional or distressed when they contact us. This can result in very irrational behaviour.

Identifying a customer who may have suicidal feelings can be very difficult. Sometimes, customers may claim they intend to harm themselves or ask for their correspondence to be taken as a suicide note. This can be difficult to deal with and can place emotional stress on the member of staff dealing with the case. It is important you know you should not feel responsible when customers behave in this way.

Signs to look out for, include:

  • their language indicates they are very low and/ or depressed
  • there seems to be no solution to their situation
  • their language alludes to the possibility of suicide. They may talk about not wanting to wake up in the morning/ there is no point to their life
  • they say they have felt like or thought about suicide in the past
  • they say they are feeling or thinking about suicide now
  • they say they have planned to kill themselves
  • they say they have already taken some action, e.g. swallowed pills

You should try not to become emotionally involved. This is not always easy. To help, you should follow the plan below:

  • Listen or read carefully – to what the customer has to say. This will help you to understand what is causing the distress and identify any aspects which are within our remit to respond to.
  • Don’t dismiss the feelings expressed – the mental health charity MIND says “Don’t dismiss expressions of hopelessness as a “cry for help” or try to jolly them out of it. Talking openly about the possibility of suicide will not make it more likely to happen”.
  • Know your limits – your role is not to act as a counsellor or doctor, so please don’t attempt to offer advice relating to the suicidal feelings expressed. Leave this to the experts.
  • Know your resources – deal openly about the expression of suicide and suggest the customer may find it helpful to contact an organisation with the skills and specialism to help them with this. Their doctor is a good starting point. In addition there are organisations, such as Samaritans, offering emergency helplines for people who are feeling desperate. The Samaritans telephone number is 116 123 and email jo@samaritans.org.
  • Look after yourself – contact of this nature can be very distressing, therefore it is important to discuss it with your manager as soon as possible.
  • Make a note of a conversation – make a note for our records.

If you strongly believe the customer has taken action to harm themselves either implied or specifically stated, please inform your line manager. A decision may be taken to contact the emergency services (Police, Ambulance).

If by telephone, it may be possible for the person taking the call to try and keep the caller talking whilst a colleague dials 999 and explains the situation. You may have to ask the caller to open the door to let the ambulance service in once you know they are on the way. The problem here is that the caller may simply be unwilling or too distressed to give this information. There may be little further we can do.

The principles of this guidance can apply to letters and other forms of contact, as well as telephone calls.

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