UK: Company Secretarial Update – September 2010

Last Updated: 13 September 2010
Article by Viv Holyoake

SOLE CORPORATE DIRECTORS

The transition period for companies with a sole corporate director ends on 1 October 2010. Companies with a sole corporate director will need to appoint a natural person as an additional director before 1 October 2010.

Since 1 October 2007, Section 155 of the Companies Act 2006 ("CA 2006") has provided that all new companies, and companies that did not have a sole corporate director as at 8 November 2006, must have a director that is a natural person and that a sole corporate director could not be appointed for these companies. The Companies Act 1985 (as amended) did not contain such a requirement, so prior to the implementation of the CA 2006, a company could have a sole corporate director. In the past sole corporate directors were appointed to subsidiary companies within a group structure to provide for easier administration.

However, transitional provisions in The Companies Act 2006 (Commencement No. 5, Transitional Provisions and Savings) Order 2007 provided that where a company had a sole corporate director as at 8 November 2006, the sole corporate director could remain without a natural person being appointed as a director, until 30 September 2010.

As you will appreciate this deadline is fast approaching. Therefore if you have a company that has a sole corporate director, please do act now.

It is an offence to not comply with the requirements outlined above and the company and its officers could receive a fine on summary conviction (£5,000) plus a daily default fine if found not to have complied with the legislation.

SERVICE ADDRESSES

A director, secretary or member of an LLP (collectively referred to as an "officer") can register a service address which can be different from their residential address. The service address can be any address. Where an officer has not registered a different service address, Companies House automatically uses the residential address previously notified as the service address for that person. Residential addresses are still required and are kept by Companies House but are not accessible by the general public.

Prior to 1 October 2009 an officer was required to disclose their residential address for the public record. The forms that would have been filed to reflect these addresses are still accessible, therefore even where a service address has since been registered at Companies House, a historical residential address is still accessible.

That said, the use of a service address still serves to protect the privacy of an officer and helps the officers separate home and work. The service address must be an address at which documents may be effectively served on that person (Section 1141 of the CA 2006). The service address must be a place where:

  • the service of documents can be effected by physical delivery; and
  • the delivery of documents is capable of being recorded by the obtaining of an acknowledgement of delivery.

An officer may provide a different service address for each company or LLP of which he is an officer. An officer's service address may be stated to be 'The company's registered office'. If the service address is recorded as the registered office, it is not necessary to enter in the statutory registers the full address of the registered office. This can be helpful where a company subsequently changes its registered office as the company or LLP would not need to make any changes to the recorded details of the officer in the register of directors/secretaries or members. However, a register of residential addresses of the officers must be created and maintained.

We are able to provide our address as the service address, although there is a fee payable for this service. If you would like to take advantage of the ability to use a service address for an officer's details please contact the company secretarial team.

PROOF

The PROtected Online Filing scheme is maintained by Companies House. It protects companies and LLPs from fraudulent filings by preventing the filing of certain paper forms, instead certain forms can only be filed electronically, either using Web filing or electronic filing using a third party software supplier.

The forms covered by the PROOF scheme are those in relation to:

  • Appointments
  • Terminations
  • Change of Particulars (Company Officers)
  • Change of Registered Office Address
  • Annual Return

When a company or LLP has joined the PROOF scheme, Companies House will reject any paper versions of these forms and send them back to the registered office address. This helps to ensure that any changes made have been registered by the company itself.

The PROOF scheme has been in operation since 2005 and initially customers could only join the scheme by submitting a paper (PR1) form. In June this year, Companies House implemented an electronic opt-in facility, which allowed customers who were registered for the WebFiling service to sign their companies in and out of PROOF on line, using their company authentication code.

As the CA 2006 has now been implemented by Companies House, PROOF has new terms and conditions which operate under the statutory framework of the CA 2006 (section 1070). Companies already registered for PROOF will need to transfer to the new PROOF scheme because the old scheme will eventually be withdrawn.

Companies House advises customers who are not already registered for PROOF to sign up to the service via WebFiling in order to protect their company or LLP against fraudulent filings. This is also recommended where we e-file papers for clients and we are able to register a company for PROOF if requested.

However, please note that if PROOF is registered for a company which subsequently appoints a new director or secretary, the officer being appointed will be asked to complete a letter from us with a 9 digit personal identification number ("PIN") made of the first 3 letters or numbers from key personal details for the director or secretary. Without such a PIN the form cannot be filed electronically or alternatively the PROOF scheme can be turned off. The same PIN requirements apply to LLPs where they are appointing members.

ELECTRONIC FILING FOR LLPS

From 19 August 2010 Companies House enabled the electronic filing of papers for LLPs. This information includes the annual return form (LLAR01), which when filed online incurs a £15 fee compared to the £30 paper filing fee. In order to take advantage of the electronic filing, each LLP will first need to apply for their authentication code.

At present we can electronically file papers for LLPs using Companies House's Web filing service, it is anticipated that our external software providers will also introduce e-filing for LLPs in the next few months.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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