Attachment of Earnings Act 1971

1971 CHAPTER 32

An Act to consolidate the enactments relating to the attachment of earnings as a means of enforcing the discharge of monetary obligations.

[12th May 1971]

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Cases in which attachment is available

1 Courts with power to attach earnings

(1) The High Court may make an attachment of earnings order to secure payments under a High Court maintenance order.

(2) A county court may make an attachment of earnings order to secure—

(a) payments under a High Court or a county court maintenance order;

(b) the payment of a judgment debt, other than a debt of less than £5 or such other sum as may be prescribed by county court rules ; or

(c) payments under an administration order.

(3) A magistrates' court may make an attachment of earnings order to secure—

(a) payments under a magistrates' court maintenance order ;

(b) the payment of any sum adjudged to be paid by a conviction or treated (by any enactment relating to the collection and enforcement of fines, costs, compensation or forfeited recognisances) as so adjudged to be paid; or

(c) the payment of any sum required to be paid by a legal aid contribution order.

(4) The following provisions of this Act apply, except where otherwise stated, to attachment of earnings orders made, or to be made, by any court.

(5) Any power conferred by this Act to make an attachment of earnings order includes a power to make such an order to secure the discharge of liabilities arising before the coming into force of this Act.

2 Principal definitions

In this Act—

(a) " maintenance order" means any order specified in Schedule 1 to this Act and includes such an order which has been discharged if any arrears are recoverable thereunder;

(b) " High Court maintenance order", " county court maintenance order" and " magistrates' court maintenance order " mean respectively a maintenance order enforceable by the High Court, a county court and a magistrates' court;

(c) " judgment debt " means a sum payable under—

(i) a judgment or order enforceable by a court in England and Wales (not being a magistrates' court);

(ii) an order of a magistrates' court for the payment of money recoverable summarily as a civil debt; or

(iii) an order of any court which is enforceable as if it were for the payment of money so recoverable, but does not include any sum payable under a maintenance order or an administration order;

(d) " the relevant adjudication ", in relation to any payment secured or to be secured by an attachment of earnings order, means the conviction, judgment, order or other adjudication from which there arises the liability to make the payment; and

(e) " the debtor ", in relation to an attachment of earnings order, or to proceedings in which a court has power to make an attachment of earnings order, or to proceedings arising out of such an order, means the person by whom payment is required by the relevant adjudication to be made.

3 Application for order and conditions of court's power to make it

(1) The following persons may apply for an attachment of earnings order:—

(a) the person to whom payment under the relevant adjudication is required to be made (whether directly or through an officer of any court);

(b) where the relevant adjudication is an administration order, any one of the creditors scheduled to the order;

(c) without prejudice to paragraph (a) above, where the application is to a magistrates' court for an order to secure maintenance payments, and there is in force an order under section 52(1) of the [1952 c. 55.] Magistrates' Courts Act 1952, or section 19(2) of the [1950 c. 37.] Maintenance Orders Act 1950, that those payments be made to the clerk of a magistrates' court, the clerk of that court;

(d) in the following cases the debtor—

(i) where the application is to a magistrates' court; or

(ii) where the application is to the High Court or a county court for an order to secure maintenance payments.

(2) An application for an attachment of earnings order to secure maintenance payments shall not be made, except by the debtor, unless at least fifteen days have elapsed since the making of the related maintenance order.

(3) For an attachment of earnings order to be made on the application of any person other than the debtor it must appear to the court that the debtor has failed to make one or more payments required by the relevant adjudication.

(4) Where proceedings are brought—

(a) in the High Court or a county court for the enforcement of a maintenance order by committal under section 5 of the [1869 c. 62.] Debtors Act 1869; or

(b) in a magistrates' court for the enforcement of a maintenance order under section 64 of the Magistrates' Courts Act 1952 (distress or committal),

then, subject to subsection (5) below, the court may make an attachment of earnings order to secure payments under the maintenance order, instead of dealing with the case under section 5 of the said Act of 1869 or, as the case may be, section 64 of the said Act of 1952.

(5) The court shall not, except on the application of the debtor, make an attachment of earnings order to secure payments under a maintenance order if it appears to it that the debtor's failure to make payments in accordance with the maintenance order is not due to his wilful refusal or culpable neglect.

(6) Where proceedings are brought in a county court for an order of committal under section 5 of the [1869 c. 62.] Debtors Act 1869 in respect of a judgment debt for any of the taxes, contributions or liabilities specified in Schedule 2 to this Act, the court may, in any circumstances in which it has power to make such an order, make instead an attachment of earnings order to secure the payment of the judgment debt.

(7) A county court shall not make an attachment of earnings order to secure the payment of a judgment debt if there is in force an order or warrant for the debtor's committal, under section 5 of the Debtors Act 1869, in respect of that debt; but in any such case the court may discharge the order or warrant with a view to making an attachment of earnings order instead.

Administration orders in the county court

4 Extension of power to make administration order

(1) Where, on an application to a county court for an attachment of earnings order to secure the payment of a judgment debt, it appears to the court that the debtor also has other debts, the court—

(a) shall consider whether the case may be one in which all the debtor's liabilities should be dealt with together and that for that purpose an order should be made for the administration of his estate ; and

(b) if of opinion that it may be such a case, shall have power (whether or not it makes the attachment of earnings order applied for), with a view to making an administration order, to order the debtor to furnish to the court a list of all his creditors and the amounts which he owes to them respectively.

(2) If, on receipt of the list referred to in subsection (1)(b) above, it appears to the court that the debtor's whole indebtedness amounts to not more than the amount for the time being specified in section 148(1)(b) of the [1959 c. 22.] County Courts Act 1959 (limit of total indebtedness governing county court's power to make administration order on application of debtor), the court may make such an order in respect of the debtor's estate.

This subsection is subject to section 20(3) of the [1965 c. 2.] Administration of Justice Act 1965 (which requires that, before an administration order is made, notice is to be given to all the creditors and thereafter restricts the right of any creditor to institute bankruptcy proceedings).

(3) Where under subsection (1) above a county court orders a person to furnish to it a list of all his creditors, the making of the order shall, for the purposes of the [1914 c. 59.] Bankruptcy Act 1914, be an act of bankruptcy by him.

(4) Nothing in this section is to be taken as prejudicing any right of a debtor to apply, under section 148 of the County Courts Act 1959, for an administration order.

5 Attachment of earnings to secure payments under administration order

(1) Where a county court makes an administration order in respect of a debtor's estate, it may also make an attachment of earnings order to secure the payments required by the administration order.

(2) At any time when an administration order is in force a county court may (with or without an application) make an attachment of earnings order to secure the payments required by the administration order, if it appears to the court that the debtor has failed to make any such payment.

(3) The power of a county court under this section to make an attachment of earnings order to secure the payments required by an administration order shall, where the debtor is already subject to an attachment of earnings order to secure the payment of a judgment debt, include power to direct that the last-mentioned order shall take effect (with or without variation under section 9 of this Act) as an order to secure the payments required by the administration order.

Consequences of attachment order

6 Effect and contents of order

(1) An attachment of earnings order shall be an order directed to a person who appears to the court to have the debtor in his employment and shall operate as an instruction to that person—

(a) to make periodical deductions from the debtor's earnings in accordance with Part I of Schedule 3 to this Act; and

(b) at such times as the order may require, or as the court may allow, to pay the amounts deducted to the collecting officer of the court, as specified in the order.

(2) For the purposes of this Act, the relationship of employer and employee shall be treated as subsisting between two persons if one of them, as a principal and not as a servant or agent, pays to the other any sums defined as earnings by section 24 of this Act.

(3) An attachment of earnings order shall contain prescribed particulars enabling the debtor to be identified by the employer.

(4) Except where it is made to secure maintenance payments, the order shall specify the whole amount payable under the relevant adjudication (or so much of that amount as remains unpaid), including any relevant costs.

(5) The order shall specify—

(a) the normal deduction rate, that is to say, the rate (expressed as a sum of money per week, month or other period) at which the court thinks it reasonable for the debtor's earnings to be applied to meeting his liability under the relevant adjudication ; and

(b) the protected earnings rate, that is to say the rate (so expressed) below which, having regard to the debtor's resources and needs, the court thinks it reasonable that the earnings actually paid to him should not be reduced.

(6) In the case of an order made to secure payments under a maintenance order (not being an order for the payment of a lump sum), the normal deduction rate—

(a) shall be determined after taking account of any right or liability of the debtor to deduct income tax when making the payments ; and

(b) shall not exceed the rate which appears to the court necessary for the purpose of—

(i) securing payment of the sums falling due from time to time under the maintenance order, and

(ii) securing payment within a reasonable period of any sums already due and unpaid under the maintenance order.

(7) For the purposes of an attachment of earnings order, the collecting officer of the court shall be (subject to later variation of the order under section 9 of this Act)—

(a) in the case of an order made by the High Court, either—

(i) the proper officer of the High Court, or

(ii) the registrar of such county court as the order may specify;

(b) in the case of an order made by a county court, the registrar of that court; and

(c) in the case of an order made by a magistrates' court, the clerk either of that court or of another magistrates' court specified in the order.

7 Compliance with order by employer

(1) Where an attachment of earnings order has been made, the employer shall, if he has been served with the order, comply with it; but he shall be under no liability for non-compliance before seven days have elapsed since the service.

(2) Where a person is served with an attachment of earnings order directed to him and he has not the debtor in his employment, or the debtor subsequently ceases to be in his employment, he shall (in either case), within ten days from the date of service or, as the case may be, the cesser, give notice of that fact to the court.

(3) Part II of Schedule 3 to this Act shall have effect with respect to the priority to be accorded as between two or more attachment of earnings orders directed to a person in respect of the same debtor.

(4) On any occasion when the employer makes, in compliance with the order, a deduction from the debtor's earnings—

(a) he shall be entitled to deduct, in addition, five new pence, or such other sum as may be prescribed by order made by the Lord Chancellor, towards his clerical and administrative costs; and

(b) he shall give to the debtor a statement in writing of the total amount of the deduction.

(5) An order of the Lord Chancellor under subsection (4)(a) above—

(a) may prescribe different sums in relation to different classes of cases;

(b) may be varied or revoked by a subsequent order made under that paragraph ; and

(c) shall be made by statutory instrument subject to annulment by resolution of either House of Parliament.

8 Interrelation with alternative remedies open to creditor

(1) Where an attachment of earnings order has been made to secure maintenance payments, no order or warrant of commitment shall be issued in consequence of any proceedings for the enforcement of the related maintenance order begun before the making of the attachment of earnings order.

(2) Where a county court has made an attachment of earnings order to secure the payment of a judgment debt—

(a) no order or warrant of commitment shall be issued in consequence of any proceedings for the enforcement of the debt begun before the making of the attachment of earnings order; and

(b) so long as the order is in force, no execution for the recovery of the debt shall issue against any property of the debtor without the leave of the county court.

(3) An attachment of earnings order made to secure maintenance payments shall cease to have effect upon the making of an order of commitment or the issue of a warrant of commitment for the enforcement of the related maintenance order, or upon the exercise for that purpose of the power conferred on a magistrates' court by section 65(2) of the [1952 c. 55.] Magistrates' Courts Act 1952 to postpone the issue of such a warrant.

(4) An attachment of earnings order made to secure the payment of a judgment debt shall cease to have effect on the making of an order of commitment or the issue of a warrant of commitment for the enforcement of the debt.

(5) An attachment of earnings order made to secure any payment specified in section 1(3)(b) or (c) of this Act shall cease to have effect on the issue of a warrant committing the debtor to prison for default in making that payment.

Subsequent proceedings

9 Variation, lapse and discharge of orders

(1) The court may make an order discharging or varying an attachment of earnings order.

(2) Where an order is varied, the employer shall, if he has been served with notice of the variation, comply with the order as varied ; but he shall be under no liability for non-compliance before seven days have elapsed since the service.

(3) Rules of court may make provision—

(a) as to the circumstances in which an attachment of earnings order may be varied or discharged by the court of its own motion ;

(b) in the case of an attachment of earnings order made by a magistrates' court, for enabling a single justice, on an application made by the debtor on the ground of a material change in his resources and needs since the order was made or last varied, to vary the order for a period of not more than four weeks by an increase of the protected earnings rate.

(4) Where an attachment of earnings order has been made and the person to whom it is directed ceases to have the debtor in his employment, the order shall lapse (except as respects deduction from earnings paid after the cesser and payment to the collecting officer of amounts deducted at any time) and be of no effect unless and until the court again directs it to a person (whether the same as before or another) who appears to the court to have the debtor in his employment.

(5) The lapse of an order under subsection (4) above shall not prevent its being treated as remaining in force for other purposes.

10 Normal deduction rate to be reduced in certain cases

(1) The following provisions shall have effect, in the ease of an attachment of earnings order made to secure maintenance payments, where it appears to the collecting officer of the court that—

(a) the aggregate of the payments made for the purposes of the related maintenance order by the debtor (whether under the attachment of earnings order or otherwise) exceeds the aggregate of the payments required up to that time by the maintenance order; and

(b) the normal deduction rate specified by the attachment of earnings order (or, where two or more such orders are in force in relation to the maintenance order, the aggregate of the normal deduction rates specified by those orders) exceeds the rate of payments required by the maintenance order; and

(c) no proceedings for the variation or discharge of the attachment of earnings order are pending.

(2) In the case of an order made by the High Court or a county court, the collecting officer shall give the prescribed notice to the person to whom he is required to pay sums received under the attachment of earnings order, and to the debtor; and the court shall make the appropriate variation order, unless the debtor requests it to discharge the attachment of earnings order, or to vary it in some other way, and the court thinks fit to comply with the request.

(3) In the case of an order made by a magistrates' court, the collecting officer shall apply to the court for the appropriate variation order; and the court shall grant the application unless the debtor appears at the hearing and requests the court to discharge the attachment of earnings order, or to vary it in some other way, and the court thinks fit to comply with the request.

(4) In this section, " the appropriate variation order " means an order varying the attachment of earnings order in question by reducing the normal deduction rate specified thereby so as to secure that that rate (or, in the case mentioned in subsection (1)(b) above, the aggregate of the rates therein mentioned)—

(a) is the same as the rate of payments required by the maintenance order; or

(b) is such lower rate as the court thinks fit having regard to the amount of the excess mentioned in subsection (1)(a).

11 Attachment order in respect of maintenance payments to cease to have effect on occurrence of certain events

(1) An attachment of earnings order made to secure maintenance payments shall cease to have effect—

(a) upon the grant of an application for registration of the related maintenance order under section 2 of the [1958 c. 39.] Maintenance Orders Act 1958 (which provides for the registration in a magistrates' court of a High Court or county court maintenance order, and for registration in the High Court of a magistrates' court maintenance order);

(b) where the related maintenance order is registered under Part I of the said Act of 1958, upon the giving of notice with respect thereto under section 5 of that Act (notice with view to cancellation of registration);

(c) subject to subsection (3) below, upon the discharge of the related maintenance order while it is not registered under Part I of the said Act of 1958 ;

(d) upon the related maintenance order ceasing to be registered in a court in England or Wales, or becoming registered in a court in Scotland or Northern Ireland, under Part II of the [1950 c. 37.] Maintenance Orders Act 1950.

(2) Subsection (1)(a) above shall have effect, in the case of an application for registration under section 2(1) of the said Act of 1958, notwithstanding that the grant of the application may subsequently become void under subsection (2) of that section.

(3) Where the related maintenance order is discharged as mentioned in subsection (1)(c) above and it appears to the court discharging the order that arrears thereunder will remain to be recovered after the discharge, that court may, if it thinks fit, direct that subsection (1) shall not apply.

12 Termination of employer's liability to make deductions

(1) Where an attachment of earnings order ceases to have effect under section 8 or 11 of this Act, the proper officer of the prescribed court shall give notice of the cesser to the person to whom the order was directed.

(2) Where, in the case of an attachment of earnings order made otherwise than to secure maintenance payments, the whole amount payable under the relevant adjudication has been paid, and also any relevant costs, the court shall give notice to the employer that no further compliance with the order is required.

(3) Where an attachment of earnings order—

(a) ceases to have effect under section 8 or 11 of this Act; or

(b) is discharged under section 9,

the person to whom the order has been directed shall be under no liability in consequence of his treating the order as still in force at any time before the expiration of seven days from the date on which the notice required by subsection (1) above or, as the case may be, a copy of the discharging order is served on him.

Administrative provisions

13 Application of sums received by collecting officer

(1) Subject to subsection (3) below, the collecting officer to whom a person makes payments in compliance with an attachment of earnings order shall, after deducting such court fees, if any, in respect of proceedings for or arising out of the order, as are deductible from those payments, deal with the sums paid in the same way as he would if they had been paid by the debtor to satisfy the relevant adjudication.

(2) Any sums paid to the collecting officer under an attachment of earnings order made to secure maintenance payments shall, when paid to the person entitled to receive those payments, be deemed to be payments made by the debtor (with such deductions, if any, in respect of income tax as the debtor is entitled or required to make) so as to discharge—

(a) first, any sums for the time being due and unpaid under the related maintenance order (a sum due at an earlier date being discharged before a sum due at a later date); and

(b) secondly, any costs incurred in proceedings relating to the related maintence order which were payable by the debtor when the attachment of earnings order was made or last varied.

(3) Where a county court makes an attachment of earnings order to secure the payment of a judgment debt and also, under section 4(1) of this Act, orders the debtor to furnish to the court a list of all his creditors, sums paid to the collecting officer in compliance with the attachment of earnings order shall not be dealt with by him as mentioned in subsection (1) above, but shall be retained by him pending the decision of the court whether or not to make an administration order and shall then be dealt with by him as the court may direct.

14 Power of court to obtain statements of earnings etc.

(1) Where in any proceedings a court has power to make an attachment of earnings order, it may—

(a) order the debtor to give to the court, within a specified period, a statement signed by him of—

(i) the name and address of any person by whom earnings are paid to him ;

(ii) specified particulars as to his earnings and anticipated earnings, and as to his resources and needs; and

(iii) specified particulars for the purpose of enabling the debtor to be identified by any employer of his;

(b) order any person appearing to the court to have the debtor in his employment to give to the court, within a specified period, a statement signed by him or on his behalf of specified particulars of the debtor's earnings and anticipated earnings.

(2) Where an attachment of earnings order has been made, the court may at any time thereafter while the order is in force make such an order as is described in subsection (1)(a) or (b) above.

(3) In the case of an application to a magistrates' court for an attachment of earnings order, or for the variation or discharge of such an order, the power to make an order under subsection (1) or (2) above shall be exercisable also, before the hearing of the application, by a single justice.

(4) Without prejudice to subsections (1) to (3) above, rules of court may provide that where notice of an application for an attachment of earnings order is served on the debtor, it shall include a requirement that he shall give to the court, within such period and in such manner as may be prescribed, a statement in writing of the matters specified in subsection (1)(a) above and of any other prescribed matters which are, or may be, relevant under section 6 of this Act to the determination of the normal deduction rate and the protected earnings rate to be specified in any order made on the application.

(5) In any proceedings in which a court has power to make an attachment of earnings order, and in any proceedings for the making, variation or discharge of such an order, a document purporting to be a statement given to the court in compliance with an order under subsection (1)(a) or (b) above, or with any such requirement of a notice of application for an attachment of earnings order as is mentioned in subsection (4) above, shall, in the absence of proof to the contrary, be deemed to be a statement so given and shall be evidence of the facts stated therein.

15 Obligation of debtor and his employers to notify changes of employment and earnings

While an attachment of earnings order is in force—

(a) the debtor shall from time to time notify the court in writing of every occasion on which he leaves any employment, or becomes employed or re-employed, not later (in each case) than seven days from the date on which he did so ;

(b) the debtor shall, on any occasion when he becomes employed or re-employed, include in his notification under paragraph (a) above particulars of his earnings and anticipated earnings from the relevant employment ; and

(c) any person who becomes the debtor's employer and knows that the order is in force and by what court it was made shall, within seven days of his becoming the debtor's employer or of acquiring that knowledge (whichever is the later) notify that court in writing that he is the debtor's employer, and include in his notification a statement of the debtor's earnings and anticipated earnings.

16 Power of court to determine whether particular payments are earnings

(1) Where an attachment of earnings order is in force, the court shall, on the application of a person specified in subsection (2) below, determine whether payments to the debtor of a particular class or description specified by the application are earnings for the purposes of the order; and the employer shall be entitled to give effect to any determination for the time being in force under this section.

(2) The persons referred to in subsection (1) above are—

(a) the employer;

(b) the debtor;

(c) the person to whom payment under the relevant adjudication is required to be made (whether directly or through an officer of any court); and

(d) without prejudice to paragraph (c) above, where the application is in respect of an attachment of earnings order made to secure payments under a magistrates' court maintenance order, the collecting officer.

(3) Where an application under this section is made by the employer, he shall not incur any liability for non-compliance with the order as respects any payments of the class or description specified by the application which are made by him to the debtor while the application, or any appeal in consequence thereof, is pending; but this subsection shall not, unless the court otherwise orders, apply as respects such payments if the employer subsequently withdraws the application or, as the case may be, abandons the appeal.

17 Consolidated attachment orders

(1) The powers of a county court under sections 1 and 3 of this Act shall include power to make an attachment of earnings order to secure the payment of any number of judgment debts; and the powers of a magistrates' court under those sections shall include power to make an attachment of earnings order to secure the discharge of any number of such liabilities as are specified in section 1(3).

(2) An attachment of earnings order made by virtue of this section shall be known as a consolidated attachment order.

(3) The power to make a consolidated attachment order shall be exercised subject to and in accordance with rules of court; and rules made for the purposes of this section may provide—

(a) for the transfer from one court to another—

(i) of an attachment of earnings order, or any proceedings for or arising out of such an order ; and

(ii) of functions relating to the enforcement of any liability capable of being secured by attachment of earnings;

(b) for enabling a court to which any order, proceedings or functions have been transferred under the rules to vary or discharge an attachment of earnings order made by another court and to replace it (if the court thinks fit) with a consolidated attachment order;

(c) for the cases in which any power exercisable under this section or the rules may be exercised by a court of its own motion or on the application of a prescribed person;

(d) for requiring the clerk or registrar of a court who receives payments made to him in compliance with an attachment of earnings order, instead of complying with section 13 of this Act, to deal with them as directed by the court or the rules ; and

(e) for modifying or excluding provisions of this Act or Part III of the [1952 c. 55.] Magistrates' Courts Act 1952, but only so far as may be necessary or expedient for securing conformity with the operation of rules made by virtue of paragraphs (a) to (d) of this subsection.

Special provisions with respect to magistrates' courts

18 Certain action not to be taken by collecting officer except on request

(1) The clerk of a magistrates' court who is entitled to receive payments under a maintenance order for transmission to another person shall not—

(a) apply for an attachment of earnings order to secure payments under the maintenance order; or

(b) except as provided by section 10(3) of this Act, apply for an order discharging or varying such an attachment of earnings order; or

(c) apply for a determination under section 16 of this Act,

unless he is requested in writing to do so by a person entitled to receive the payments through him.

(2) Where the clerk is so requested—

(a) he shall comply with the request unless it appears to him unreasonable in the circumstances to do so; and

(b) the person by whom the request was made shall have the same liabilities for all the costs properly incurred in or about any proceedings taken in pursuance of the request as if the proceedings had been taken by that person.

(3) For the purposes of subsection (2)(b) above, any application made by the clerk as required by section 10(3) of this Act shall be deemed to be made on the request of the person in whose favour the attachment of earnings order in question was made.

19 Procedure on applications

(1) Subject to rules of court made by virtue of the following subsection, an application to a magistrates' court for an attachment of earnings order, or an order discharging or varying an attachment of earnings order, shall be made by complaint.

(2) Rules of court may make provision excluding subsection (1) in the case of such an application as is referred to in section 9(3)(b) of this Act.

(3) An application to a magistrates' court for a determination under section 16 of this Act shall be made by complaint.

(4) For the purposes of section 43 of the [1952 c. 55.] Magistrates' Courts Act 1952 (which provides for the issue of a summons directed to the person against whom an order may be made in pursuance of a complaint)—

(a) the power to make an order in pursuance of a complaint by the debtor for an attachment of earnings order, or the discharge or variation of such an order, shall be deemed to be a power to make an order against the person to whom payment under the relevant adjudication is required to be made (whether directly or through an officer of any court); and

(b) the power to make an attachment of earnings order, or an order discharging or varying an attachment of earnings order, in pursuance of a complaint by any other person (including a complaint in proceedings to which section 3(4)(b) of this Act applies) shall be deemed to be a power to make an order against the debtor.

(5) A complaint for an attachment of earnings order may be heard notwithstanding that it was not made within the six months allowed by section 104 of the Magistrates' Courts Act 1952.

20 Jurisdiction in respect of persons residing outside England and Wales

(1) It is hereby declared that a magistrates' court has jurisdiction to hear a complaint by or against a person residing outside England and Wales for the discharge or variation of an attachment of earnings order made by a magistrates' court to secure maintenance payments; and where such a complaint is made, the following provisions shall have effect.

(2) If the person resides in Scotland or Northern Ireland, section 15 of the [1950 c. 37.] Maintenance Orders Act 1950 (which relates to the service of process on persons residing in those countries) shall have effect in relation to the complaint as it has effect in relation to the proceedings therein mentioned.

(3) Subject to the following subsection, if the person resides outside the United Kingdom and does not appear at the time and place appointed for the hearing of the complaint, the court may, if it thinks it reasonable in all the circumstances to do so, proceed to hear and determine the complaint at the time and place appointed for the hearing, or for any adjourned hearing, in like manner as if the person had then appeared.

(4) Subsection (3) above shall apply only if it is proved to the satisfaction of the court, on oath or in such other manner as may be prescribed, that the complainant has taken such steps as may be prescribed to give to the said person notice of the complaint and of the time and place appointed for the hearing of it.

21 Costs on application under s. 16

(1) On making a determination under section 16 of this Act, a magistrates' court may in its discretion make such order as it thinks just and reasonable for payment by any of the persons mentioned in subsection (2) of that section of the whole or any part of the costs of the determination (but subject to section 18(2)(b) of this Act).

(2) Costs ordered to be paid under this section shall—

(a) in the case of costs to be paid by the debtor to the person in whose favour the attachment of earnings order in question was made, be deemed—

(i) if the attachment of earnings order was made to secure maintenance payments, to be a sum due under the related maintenance order, and

(ii) otherwise, to be a sum due to the clerk of the court; and

(b) in any other case, be enforceable as a civil debt.

Miscellaneous provisions

22 Persons employed under the Crown

(1) The fact that an attachment of earnings order is made at the suit of the Crown shall not prevent its operation at any time when the debtor is in the employment of the Crown.

(2) Where a debtor is in the employment of the Crown and an attachment of earnings order is made in respect of him, then for the purposes of this Act—

(a) the chief officer for the time being of the department, office or other body in which the debtor is employed shall be treated as having the debtor in his employment (any transfer of the debtor from one department, office or body to another being treated as a change of employment); and

(b) any earnings paid by the Crown or a Minister of the Crown, or out of the public revenue of the United Kingdom, shall be treated as paid by the said chief officer.

(3) If any question arises, in proceedings for or arising out of an attachment of earnings order, as to what department, office or other body is concerned for the purposes of this section, or as to who for those purposes is the chief officer thereof, the question shall be referred to and determined by the Minister for the Civil Service; but that Minister shall not be under any obligation to consider a reference under this subsection unless it is made by the court.

(4) A document purporting to set out a determination of the said Minister under subsection (3) above and to be signed by an official of the Civil Service Department shall, in any such proceedings as are mentioned in that subsection, be admissible in evidence and be deemed to contain an accurate statement of such a determination unless the contrary is shown.

(5) This Act shall have effect notwithstanding any enactment passed before 29th May 1970 and preventing or avoiding the attachment or diversion of sums due to a person in respect of service under the Crown, whether by way of remuneration, pension or otherwise.

23 Enforcement provisions

(1) If, after being served with notice of an application to a county court for an attachment of earnings order or for the variation of such an order, the debtor fails to attend on the day and at the time specified for any hearing of the application, the court may adjourn the hearing and order him to attend at a specified time on another day; and if the debtor—

(a) fails to attend at that time on that day ; or

(b) attends, but refuses to be sworn or give evidence,

he may be ordered by the judge to be imprisoned for not more than fourteen days.

(2) Subject to this section, a person commits an offence if—

(a) being required by section 7(1) or 9(2) of this Act to comply with an attachment of earnings order, he fails to do so ; or

(b) being required by section 7(2) of this Act to give a notice for the purposes of that subsection, he fails to give it, or fails to give it within the time required by that subsection; or

(c) he fails to comply with an order under section 14(1) of this Act or with any such requirement of a notice of application for an attachment of earnings order as is mentioned in section 14(4), or fails (in either case) to comply within the time required by the order or notice; or

(d) he fails to comply with section 15 of this Act; or

(e) he gives a notice for the purposes of section 7(2) of this Act, or a notification for the purposes of section 15, which he knows to be false in a material particular, or recklessly gives such a notice or notification which is false in a material particular ; or

(f) in purported compliance with section 7(2) or 15 of this Act, or with an order under section 14(1), or with any such requirement of a notice of application for an attachment of earnings order as is mentioned in section 14(4), he makes any statement which he knows to be false in a material particular, or recklessly makes any statement which is false in a material particular.

(3) Where a person commits an offence under subsection (2) above in relation to proceedings in, or to an attachment of earnings order made by, the High Court or a county court, he shall be liable on summary conviction to a fine of not more than £25 or he may be ordered by a judge of the High Court or the county court judge (as the case may be) to pay a fine of not more than £25 or, in the case of an offence specified in subsection (4) below, to be imprisoned for not more than fourteen days; and where a person commits an offence under subsection (2) otherwise than as mentioned above in this subsection, he shall be liable on summary conviction to a fine of not more than £25.

(4) The offences referred to above in the case of which a judge may impose imprisonment are—

(a) an offence under subsection (2)(c) or (d), if committed by the debtor ; and

(b) an offence under subsection (2)(e) or (f), whether committed by the debtor or any other person.

(5) It shall be a defence—

(a) for a person charged with an offence under subsection (2)(a) above to prove that he took all reasonable steps to comply with the attachment of earnings order in question;

(b) for a person charged with an offence under subsection (2)(b) to prove that he did not know, and could not reasonably be expected to know, that the debtor was not in his employment, or (as the case may be) had ceased to be so, and that he gave the required notice as soon as reasonably practicable after the fact came to his knowledge.

(6) Where a person is convicted or dealt with for an offence under subsection (2)(a), the court may order him to pay, to whoever is the collecting officer of the court for the purposes of the attachment of earnings order in question, any sums deducted by that person from the debtor's earnings and not already paid to the collecting officer.

(7) Where under this section a person is ordered by a judge of the High Court or a county court judge to be imprisoned, the judge may at any time revoke the order and, if the person is already in custody, order his discharge.

(8) Any fine imposed by a judge of the High Court under subsection (3) above and any sums ordered by the High Court to be paid under subsection (6) above shall be recoverable in the same way as a fine imposed by that court in the exercise of its jurisdiction to punish for contempt of court; section 179 of the [1959 c. 22.] County Courts Act 1959 (enforcement of fines) shall apply to payment of a fine imposed by a county court judge under subsection (3) and of any sums ordered by a county court judge to be paid under subsection (6); and any sum ordered by a magistrates' court to be paid under subsection (6) shall be recoverable as a sum adjudged to be paid on a conviction by that court.

(9) For the purposes of section 13 of the [1960 c. 65.] Administration of Justice Act 1960 (appeal in cases of contempt of court), subsection (3) above shall be treated as an enactment enabling the High Court or a county court to deal with an offence under subsection (2) above as if it were contempt of court.

(10) In this section references to proceedings in a court are to proceedings in which that court has power to make an attachment of earnings order or has made such an order.

24 Meaning of " earnings "

(1) For the purposes of this Act, but subject to the following subsection, " earnings " are any sums payable to a person—

(a) by way of wages or salary (including any fees, bonus, commission, overtime pay or other emoluments payable in addition to wages or salary or payable under a contract of service);

(b) by way of pension (including an annuity in respect of past services, whether or not rendered to the person paying the annuity, and including periodical payments by way of compensation for the loss, abolition or relinquishment, or diminution in the emoluments, of any office or employment).

(2) The following shall not be treated as earnings:—

(a) sums payable by any public department of the Government of Northern Ireland or of a territory outside the United Kingdom;

(b) pay or allowances payable to the debtor as a member of Her Majesty's forces ;

(c) pension, allowances or benefit payable under any of the enactments specified in Schedule 4 to this Act (being enactments relating to social security);

(d) pension or allowances payable in respect of disablement or disability;

(e) wages payable to a person as a seaman, other than wages payable to him as a seaman of a fishing boat.

(3) In subsection (2)(e) above, expressions used in the [1894 c. 60.] Merchant Shipping Act 1894 have the same meanings as in that Act.

25 General interpretation

(1) In this Act, except where the context otherwise requires—

• " administration order " means an order made under, and so referred to in, Part VII of the [1959 c. 22.] County Courts Act 1959 ;

• " the court ", in relation to an attachment of earnings order, means the court which made the order, subject to rules of court as to the venue for, and the transfer of, proceedings in county courts and magistrates' courts ;

• " debtor " and " relevant adjudication " have the meanings given by section 2 of this Act;

• " the employer ", in relation to an attachment of earnings order, means the person who is required by the order to make deductions from earnings paid by him to the debtor;

• " judgment debt " has the meaning given by section 2 of this Act;

• " legal aid contribution order " means an order under section 76 of the [1967 c. 80.] Criminal Justice Act 1967 ;

• " maintenance order " has the meaning given by section 2 of this Act;

• " maintenance payments " means payments required under a maintenance order;

• " prescribed " means prescribed by rules of court; and

• " rules of court ", in relation to a magistrates' court, means rules under section 15 of the [1949 c. 101.] Justices of the Peace Act 1949;

and, in relation to a magistrates' court, references to a single justice are to a justice of the peace acting for the same petty sessions area as the court.

(2) Any reference in this Act to sums payable under a judgment or order, or to the payment of such sums, includes a reference to costs and the payment of them; and the references in sections 6(4) and 12(2) to relevant costs are to any costs of the proceedings in which the attachment of earnings order in question was made, being costs which the debtor is liable to pay.

(3) References in sections 6(5)(b), 9(3)(b) and 14(1)(a) of this Act to the debtor's needs include references to the needs of any person for whom he must, or reasonably may, provide.

(4) Earnings which, in pursuance of a scheme under the [1946 c. 22.] Dock Workers (Regulation of Employment) Act 1946, are paid to a debtor by a body responsible for the local administration of the scheme acting as agent for the debtor's employer or as delegate of the body responsible for the general administration of the scheme shall be treated for the purposes of this Act as paid to the debtor by the last-mentioned body acting as principal.

(5) Any power to make rules which is conferred by this Act is without prejudice to any other power to make rules of court.

(6) This Act, so far as it relates to magistrates' courts, and Part III of the [1952 c. 55.] Magistrates' Courts Act 1952 shall be construed as if this Act were contained in that Part.

(7) References in this Act to any enactment include references to that enactment as amended by or under any other enactment, including this Act.

General

26 Transitional provision

(1) As from the appointed day, an attachment of earnings order made before that day under Part II of the [1958 c. 39.] Maintenance Orders Act 1958 (including an order made under that Part of that Act as applied by section 46 or 79 of the [1967 c. 80.] Criminal Justice Act 1967) shall take effect as an attachment of earnings order made under the corresponding power in this Act, and the provisions of this Act shall apply to it accordingly, so far as they are capable of doing so.

(2) Rules of court may make such provision as the rulemaking authority considers requisite—

(a) for enabling an attachment of earnings order to which subsection (1) above applies to be varied so as to bring it into conformity, as from the appointed day, with the provisions of this Act, or to be replaced by an attachment of earnings order having effect as if made under the corresponding power in this Act;

(b) to secure that anything required or authorised by this Act to be done in relation to an attachment of earnings order made thereunder is required or, as the case may be, authorised to be done in relation to an attachment of earnings order to which the said subsection (1) applies.

(3) In this section, " the appointed day" means the day appointed under section 54 of the [1970 c. 31.] Administration of Justice Act 1970 for the coming into force of Part II of that Act.

27 Consequential amendment of enactments

(1) In consequence of the repeals effected by this Act, section 20 of the [1958 c. 39.] Maintenance Orders Act 1958 (which contains certain provisions about magistrates' courts and their procedure), except subsection (6) of that section (which amends section 52(3) of the [1952 c. 55.] Magistrates' Courts Act 1952), shall have effect as set out in Schedule 5 to this Act.

(2) In section 156(1) of the [1959 c. 22.] County Courts Act 1959 (which confers power to make rules of court with respect to administration orders), for the words " section 29 of the Administration of Justice Act 1970 " there shall be substituted the words " section 4 of the Attachment of Earnings Act 1971 ".

(3) In section 95(4) of the [1970 c. 36.] Merchant Shipping Act 1970 (saving, in relation to fishermen's wages, of provisions in Part II of the Administration of Justice Act 1970) for the words " Part II of the Administration of Justice Act 1970 " there shall be substituted the words " the Attachment of Earnings Act 1971 ".

28 Northern Ireland

Notwithstanding anything in the [1920 c. 67.] Government of Ireland Act 1920, the Parliament of Northern Ireland shall have power to make laws for purposes similar to those of section 22 of this Act.

29 Citation, repeal, extent and commencement

(1) This Act may be cited as the Attachment of Earnings Act 1971.

(2) The enactments specified in Schedule 6 to this Act are hereby repealed to the extent specified in the third column of that Schedule.

(3) This Act, except section 20(2), does not extend to Scotland and, except sections 20(2) and 28, does not extend to Northern Ireland.

(4) This Act shall come into force on the day appointed under section 54 of the Administration of Justice Act 1970 for the coming into force of Part II of that Act.

SCHEDULES

Section 2.

SCHEDULE 1 Maintenance orders to which this Act applies

1 An order for alimony, maintenance or other payments made, or having effect as if made, under Part II of the [1965 c. 72.] Matrimonial Causes Act 1965 (ancillary relief in actions for divorce etc.).

2 An order for payments to or in respect of a child, being an order made, or having effect as if made, under Part III of the said Act of 1965 (maintenance of children following divorce, etc.).

3 An order for periodical or other payments made under Part I of the [1970 c. 45.] Matrimonial Proceedings and Property Act 1970.

4 An order for maintenance or other payments to or in respect of a spouse or child, being an order made, or having effect as if made, under the [1960 c. 48.] Matrimonial Proceedings (Magistrates' Courts) Act I960.

5 An order under—

(a) section 9(2), 10(1), 11 or 12(2) of the [1971 c. 3.] Guardianship of Minors Act 1971 (payments for maintenance of persons who are, or have been, in guardianship) ; or

(b) section 6 of the [1969 c. 46.] Family Law Reform Act 1969 (payments for maintenance of ward of court).

6 An affiliation order (that is to say an order under section 4 of the [1957 c. 55.] Affiliation Proceedings Act 1957, section 44 of the [1948 c. 29.] National Assistance Act 1948, section 26 of the [1948 c. 43.] Children Act 1948 or section 24 of the [1966 c. 20.] Ministry of Social Security Act 1966).

7 An order under section 87 of the [1933 c. 12.] Children and Young Persons Act 1933, section 30 of the [1963 c. 37.] Children and Young Persons Act 1963 or section 23 of the Ministry of Social Security Act 1966 (various provisions for obtaining contributions from a person whose dependants are assisted or maintained out of public funds).

8 An order under section 43 of the National Assistance Act 1948 (recovery of costs of maintaining assisted person).

9 An order to which section 16 of the [1950 c. 37.] Maintenance Orders Act 1950 applies by virtue of subsection (2)(b) or (c) of that section (that is to say an order made by a court in Scotland or Northern Ireland and corresponding to one of those specified in the foregoing paragraphs) and which has been registered in a court in England and Wales under Part II of that Act.

10 A maintenance order within the meaning of the [1920 c. 33.] Maintenance Orders (Facilities for Enforcement) Act 1920 (Commonwealth orders enforceable in the United Kingdom) registered in, or confirmed by, a court in England and Wales under that Act.

Section 3.

SCHEDULE 2 Taxes, social security contributions etc. relevant for purposes of section 3(6)

1 Income tax or any other tax or liability recoverable under section 65, 66 or 68 of the [1970 c. 9.] Taxes Management Act 1970.

2 Selective employment tax under section 44 of the [1966 c. 18.] Finance Act 1966.

3 Contributions under—

• section 3 (flat-rate) or section 4 (graduated) of the [1965 c. 51.] National Insurance Act 1965 ;

• section 1 of the [1965 c. 54.] National Health Service Contributions Act 1965 ; or

• section 2 of the [1965 c. 52.] National Insurance (Industrial Injuries) Act 1965.

4 Redundancy Fund contributions under section 27 of the [1965 c. 62.] Redundancy Payments Act 1965.

Sections 6 and 7.

SCHEDULE 3 Deductions by employer under attachment of earnings order

PART I Scheme of deductions

Preliminary definitions

1 The following three paragraphs have effect for defining and explaining, for purposes of this Schedule, expressions used therein.

2 " Pay-day ", in relation to earnings paid to a debtor, means an occasion on which they are paid.

3 " Attachable earnings", in relation to a pay-day, are the earnings which remain payable to the debtor on that day after deduction by the employer of—

(a) income tax;

(b) contributions under any of the following enactments—

• the National Insurance Act 1965,

• the National Insurance (Industrial Injuries) Act 1965, or

• the National Health Service Contributions Act 1965 ;

(c) amounts deductible under any enactment, or in pursuance of a request in writing by the debtor, for the purposes of a superannuation scheme within the meaning of the [1959 c. 69.] Wages Councils Act 1959.

4 On any pay-day—

(a) " the normal deduction" is arrived at by applying the normal deduction rate (as specified in the relevant attachment of earnings order) with respect to the period since the last pay-day or, if it is the first pay-day of the debtor's employment with the employer, since the employment began ; and

(b) " the protected earnings " are arrived at by applying the protected earnings rate (as so specified) with respect to the said period.

Employer's deduction (judgment debts and administration orders)

5 In the case of an attachment of earnings order made to secure the payment of a judgment debt or payments under an administration order, the employer shall on any pay-day—

(a) if the attachable earnings exceed the protected earnings, deduct from the attachable earnings the amount of the excess or the normal deduction, whichever is the less ;

(b) make no deduction if the attachable earnings are equal to, or less than, the protected earnings.

Employer's deduction (other cases)

6 (1) The following provision shall have effect in the case of an attachment of earnings order to which paragraph 5 above does not apply.

(2) If on a pay-day the attachable earnings exceed the sum of—

(a) the protected earnings ; and

(b) so much of any amount by which the attachable earnings on any previous pay-day fell short of the protected earnings as has not been made good by virtue of this sub-paragraph on another previous pay-day,

then, in so far as the excess allows, the employer shall deduct from the attachable earnings the amount specified in the following sub-paragraph.

(3) The said amount is the sum of—

(a) the normal deduction ; and

(b) so much of the normal deduction on any previous pay-day as was not deducted on that day and has not been paid by virtue of this sub-paragraph on any other previous pay-day.

(4) No deduction shall be made on any pay-day when the attachable earnings are equal to, or less than, the protected earnings.

PART II Priority as between orders

7 Where the employer is required to comply with two or more attachment of earnings orders in respect of the same debtor, all or none of which orders are made to secure either the payment of judgment debts or payments under an administration order, then on any pay-day the employer shall, for the purpose of complying with Part I of this Schedule—

(a) deal with the orders according to the respective dates on which they were made, disregarding any later order until an earlier one has been dealt with ;

(b) deal with any later order as if the earnings to which it relates were the residue of the debtor's earnings after the making of any deduction to comply with any earlier order.

8 Where the employer is required to comply with two or more attachment of earnings orders, and one or more (but not all) of those orders are made to secure either the payment of judgment debts or payments under an administration order, then on any pay-day the employer shall, for the purpose of complying with Part I of this Schedule—

(a) deal first with any order which is not made to secure the payment of a judgment debt or payments under an administration order (complying with paragraph 7 above if there are two or more such orders); and

(b) deal thereafter with any order which is made to secure the payment of a judgment debt or payments under an administration order as if the earnings to which it relates were the residue of the debtor's earnings after the making of any deduction to comply with an order having priority by virtue of sub-paragraph (a) above ; and

(c) if there are two or more orders to which sub-paragraph (b) above applies, comply with paragraph 7 above in respect of those orders.

Section 24.

SCHEDULE 4 Enactments providing benefits which are not to be treated as debtor's earnings

• The [1965 c. 51.] National Insurance Act 1965.

• The [1965 c. 52.] National Insurance (Industrial Injuries) Act 1965.

• The [1965 c. 53.] Family Allowances Act 1965.

• The [1966 c. 20.] Ministry of Social Security Act 1966.

• The [1967 c. 34.] Industrial Injuries and Diseases (Old Cases)Act 1967.

• The [1970 c. 55.] Family Income Supplements Act 1970.

Section 27.

SCHEDULE 5 Section 20 of [1958 c. 39.] Maintenance Orders Act 1958 as having effect in consequence of this act

20 (1) Notwithstanding anything in this Act, the clerk of a magistrates' court who is entitled to receive payments under a maintenance order for transmission to another person shall not apply for the registration of the maintenance order under Part I of this Act or give notice in relation to the order in pursuance of subsection (1) of section five thereof unless he is requested in writing to do so by a person entitled to receive the payments through him; and where the clerk is requested as aforesaid—

(i) he shall comply with the request unless it appears to him unreasonable in the circumstances to do so;

(ii) the person by whom the request was made shall have the same liabilities for all the costs properly incurred in or about any proceedings taken in pursuance of the request as if the proceedings had been taken by that person.

(2) An application to a magistrates' court by virtue of subsection (2) of section four of this Act for the variation of a maintenance order shall be made by complaint.

(8) For the avoidance of doubt it is hereby declared that a complaint may be made to enforce payment of a sum due and unpaid under a maintenance order notwithstanding that a previous complaint has been made in respect of that sum or a part thereof and whether or not an order was made in pursuance of the previous complaint.

Section 29.

SCHEDULE 6 Enactments repealed

Chapter	Short Title	Extent of Repeal
6 & 7 Eliz. 2. c. 39.	The Maintenance Orders Act 1958.	Section 9.
		In section 20, in subsection (1) the words " or Part II of the Administration of Justice Act 1970 ", the word " or " at the end of paragraph (a), paragraphs (b) and (c) and the words from "and for the purposes " onwards; in subsection (2), the words " Subject to rules of court made by virtue of section 18(3)(c) of the Administration of Justice Act 1970", and the words " and an application to a magistrates' court for an attachment of earnings order, or an order discharging or varying an attachment of earnings order"; and subsections (3), (4), (5) and (7).
		In section 23(2), the words " except paragraph (a) of subsection (3) of section 20 ".
1970 c. 31.	The Administration of Justice Act 1970.	Sections 13 to 26.
		Section 27(1) and (2).
		In section 28— in subsection (1), the definitions of "Act of 1958 ", " administration order ", " the court ", " debtor ", "judgment debt", "relevant adjudication", " the employer", "legal aid contribution order", and the words from " ' maintenance payments' " onwards; and subsections (2) to (5).
		Section 29(1) to (4).
		Section 30(3) and (4).
		In section 53, the words " 24 or ".
		In section 54(6), the words " and 27 " and " and 7 ".
		Schedules 5, 6 and 7.
1970 c. 55.	The Family Income Supplements Act 1970.	Section 14.