8Criteria for approving or refusing a restructure

8 Criteria for approving or refusing a restructure

(1) For the purposes of paragraph 146‑1(2)(aa) of the Act, a proposed distribution of assets and liabilities between receiving funds under a proposed restructure of a health benefits fund conducted by a private health insurer is not fairly distributed if the proposed distribution will cause, or may contribute to causing, the insurer to be in breach of: (a) the Act; or (b) any Regulations; or (c) any of the Rules; or (d) a solvency direction that applies to the private health insurer; or (e) a capital adequacy direction that applies to the private health insurer, at one or more of the following times: (f) the restructure date; or (g) any time within the first 36 months after the restructure date; or (h) any time within the foreseeable future of operation of the restructuring funds beyond 36 months after the restructure date. (2) Subrule (1) is not an exhaustive statement of criteria for refusing an application under section 146‑1 of the Act and does not prevent the Council from taking into account considerations other than those referred to in subrule (1) to form a view that a proposed distribution between receiving funds of assets and liabilities is not fairly distributed for the purposes of paragraph 146‑1(2)(aa) of the Act. (3) When considering whether a restructure will result in unfairness for the purposes of paragraphs 146‑1(3)(a) or (b) of the Act, the matters the Council may take into account include, but are not limited to, the matters referred to in subrule (1). (4) In considering an application under subsection 146‑1(1) of the Act, the Council must take into account statements made in: (a) the application; and (b) the restructure proposal; and (c) the certification of compliance; and (d) the actuary’s report, but is not bound by those statements and may make its own inquiries which may include, without limitation, obtaining other actuarial advice.