This article examines the methods of enforcement creditors in Scotland have at their disposal to collect amounts owed by a debtor. Here we will discuss the details regarding Scotland’s Earnings Arrestment system and how this is approached slightly differently than in England.

An earnings arrestment is a form of diligence used under Scottish Law by creditors to recoup the money owed by a debtor. Examples of when an individual can accrue debts are when they borrow different types of finance such as loans or credit cards and then fail to pay, or are unable to pay the scheduled repayments that the lender would expect under the terms and conditions agreed. Debts and a resulting earning arrestment can also arise if you do not have the money to pay local government for business rates for your firm, your current council tax, or arrears from previous financial years.

A Scottish Earnings Arrangement as prescribed in Scottish Law by the Scottish Government exercises the lenders’ entitlement to claim funds towards the monies due directly from the debtor’s wages in a similar fashion to the English and Welsh Attachment of Earnings scheme. The Scottish Laws approach things slightly differently though. In England and Wales a debtor’s income and expenditure are taken into account when determining how much to deduct from them. Deductions in Scotland are computed using the proposed amount specified in statutory tables. This means that an earnings arrestment in Scotland will attach a sum mandate by Scottish Government regulated statute, rather than being limited to the amount the debtor may wish to pay.

In the event that an Earnings Arrestment is in effect, the debtor’s employer is obliged to take money from the debtor’s salary or wages based on the day, week or month period that is their standard frequency of pay.

What’s The Procedure For Obtaining An Earning Arrestment?

A debtor is entitled to certain rights and obligations, as are creditors regarding the services provided. A Sheriff Officer would require the creditor to comply with all legal procedures before they may execute an Earnings Arrestment. In order to use an Earnings Arrestment to collect their debt, they must first have a warrant issued by court order, its equivalent, or a document of debt.

An order issued by the Sheriff at the Sheriff’s Court is known as a court order, though it can also be issued by the Court of Session. In the case of certain government debts, such as unpaid income tax to HMRC or unpaid council tax arrears to local government, the Sheriff Court may issue a Summary Warrant which is equivalent to a court order.

A debt document is more complicated, however, some creditors, such as landlords and credit unions, can register debts in the Books of Council and Session for preservation and execution. This entitles them to use a sheriff officer to recover debts legally without having to go to court. Summary Due Diligence is the name of this procedure. When you enter into the original deal that led to the debt, you must grant them permission before they can do this. Banks and credit card businesses are not permitted to use this option.

In the first instance it would be expected that the creditor, whether a private firm or local authority, would seek to work in co-operation with the debtor. They would issue correspondence advising the debtor of what is overdue and the options available to them to be able to negotiate a reasonably practicable regular amount for them to be paying towards the debt. In the case of local authorities they may also be able to advise that in certain circumstances the debtor may be able to apply to be exempt from the amounts owed if they are entitled under certain exemption categories. This correspondence entitles the debtor to decide whether they can take certain steps that will preferably result in a repayment arrangement with an agreed amount outlined per week or month. Furthermore, the correspondence will ensure proper notification is given to the debtor of the future enforcement steps that will be taken in due course if no payments are received.

Where no co-operation from the debtor is received the creditor must first ask a Sheriff Officer to serve what is known as a Charge for Payment before instructing them to perform an Earnings Arrestment. A Sheriff Officer will serve this lawful demand for payment on the recipient. The recipient has 14 days to make complete payments on their debt. Where the debtor makes contact with the Sheriff Officer and is able to provide evidence that an exemption was due, or that the offence was due to exceptional circumstances then the Sheriff Officer may be willing to propose and formally accept an arrangement to repay the debt. The arrears can then be recovered whilst the need to enforce an arrestment remains an option as a last resort if the debtor decided to end the arrangement. If no payment is received or no arrangement is formally accepted within the first 14 days the lender is then entitled to ask the Sheriff’s Officer to seize part of your salary.

What Are The Purpose And Limits Of Arrests In Scotland?

Arrestment serves as security for the outstanding debt to the creditor. It is a legal procedure that enables creditors to file for a dispute to seize control of a debtor’s assets in order to protect their right to repayment. The freezing and seizing of assets as the limitation on earnings arrests are the primary restrictions on the arrest.

In Scotland, it is illegal to be detained while in the workplace or at home. You are safeguarded from police interference under this special law unless they issue a warrant.

A Few Important Points Of Earnings Arrestment

• A creditor must have a court order or a comparable document (e.g. Summary Warrant or registered document of debt).

• A Debt Advice and Information Pack (DAIP) and a Charge for Payment must have been delivered and accepted by the debtor (a final formal demand for payment). The Charge for Payment must have been served at least fourteen days ago and the debt must still not have been paid.

• The employer of the debtor can then be served with an Earnings Arrestment Schedule enforced by the sheriff’s firm.

• In accordance with the Earnings Arrestment Schedule, the employer must deduct the adequate amount from the debtor’s pay or wages each week, month, or day while employed or until the obligation is fully settled.

• If the employer does not cooperate and make the deductions, there will be consequences, the employer will be held liable to pay the amounts that should have been collected.

• A Conjoined Arrestment Order application can be submitted to the court if an Earnings Arrestment is currently in place and another creditor wants to recover money from the same debtor from his wages or pay. If approved, the court will gather the deductions and distribute the money to each creditor.

• In certain cases, although the deductions are set at a statutory amount, if a debtor cooperates after an Earnings Arrestment is put into place and/or a creditor has reservations about the affordability and sustainability of the deductions, in practise, an informal payment arrangement is granted with the debtor at an alternative amount, and the Earnings Arrestment can be abolished and discharged.

• Universal Credit and any other passported benefit awards from the Department of Work and Pensions cannot be included in any arrestment transaction.

• The Debtors (Scotland) Act of 1987 specifies how deductions are determined, including a minimum level of income that is protected. The table below provides an illustration of the current deductions that must be made from a debtor who is paid on a monthly basis.

DEDUCTIONS FROM MONTHLY EARNINGS

Net earnings

Deduction

Not exceeding £566.51

Nil

Exceeding £566.51 but not exceeding £2,047.65

£15.00 or 19% of earnings exceeding £566.51, whichever is the greater

Exceeding £2,047.65 but not exceeding £3,078.47

£281.42 plus 23% of earnings exceeding £2,047.65

Exceeding £3,078.47

£518.51 plus 50% of earnings exceeding £3,078.47

A creditor must have a clear and defined strategy regarding the choice of accounts and the execution of decrees and other documentation of debt in order to maximise the possibilities of payback in order to secure payment, either in full or by instalments over a period of time. In Scotland, determining a debtor’s work status can be a crucial step in the pre-litigation assessment process. Earnings Arrestment in Scotland can be a useful and successful tactic as part of a debt recovery plan if the debtor is known to be employed.

Earnings Arrestment Debt Legal Advice

Get confidential advice by seeking professional assistance from us if you want to know your options for diligence for recovering outstanding debts.

At Complete Clarity Solicitors, our professional team specialises in offering debt counselling to Scottish residents. We may discuss your circumstances with you and work with you to develop a debt restructuring strategy.

You may contact us via email or call us on 0141 433 2626 for assistance.