Draft Regulations laid before the Scottish Parliament under section 72(2) of the Bankruptcy (Scotland) Act 1985, for approval by resolution of the Scottish Parliament.
These replace the draft Regulations of the same name laid on 29th September 2010.
2010 No.
The Bankruptcy (Certificate for Sequestration) (Scotland) Regulations 2010
Made
Coming into force
The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 5(2B)(c)(ib) and 5B(5)(a), (b) and (c) of the Bankruptcy (Scotland) Act 19851 and all other powers enabling them to do so.
In accordance with section 72(2) of that Act, a draft of these Regulations has been laid before and approved by resolution of the Scottish Parliament.
Citation, commencement and extent1
These Regulations may be cited as the Bankruptcy (Certificate for Sequestration) (Scotland) Regulations 2010 and come into force on 15th November 2010.
Interpretation2
1
2
Any reference in these Regulations to anything done in writing or produced in written form includes a reference to an electronic communication, as defined in section 15(1) of the Electronic Communications Act 20004, which has been recorded and is consequently capable of being reproduced.
Authorised persons3
1
The following are classes of persons prescribed for the purposes of section 5B(5)(a) of the Act as persons authorised to grant a certificate for sequestration—
a
persons who—
i
are qualified to act as insolvency practitioners in accordance with section 390 of the 1986 Act5; or
ii
work for an insolvency practitioner as defined in regulation 3(1)(a)(i), who have been given authority by that insolvency practitioner to act on behalf of that insolvency practitioner in the granting of a certificate for sequestration; and
b
persons who—
i
work as money advisers for organisations which have been awarded accreditation at Type 2 level or above against the Scottish National Standards for Information and Advice Provision; or
ii
are approved for the purposes of the Debt Arrangement Scheme; or
iii
work as money advisers for a citizens advice bureau which is a full member of the Scottish Association of Citizens Advice Bureaux – Citizens Advice Scotland; or
iv
work as money advisers for councils constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c.39).
2
An authorised person for the purposes of section 5B(5)(a) of the Act shall not be an associate of the debtor in accordance with section 74 of the Act6.
Further provisions relating to certification4
Prior to granting a certificate for sequestration, an authorised person must—
a
provide the debtor with a copy of a Debt Advice and Information Package referred to in section 10(5) of the 2002 Act;
b
advise the debtor of the options of a voluntary repayment plan, a debt payment programme under the Debt Arrangement Scheme or a trust deed; and
c
advise the debtor of the consequences of sequestration and that an award of sequestration, if granted, is recorded in a public register and may result in one or more of—
i
the debtor being refused credit, or being offered credit at a higher rate, whether before or after the date of the debtor being discharged;
ii
the debtor not being able to remain in his/her current place of residence;
iii
the debtor being required to relinquish property which the debtor owns;
iv
the debtor requiring to make contributions from income for the benefit of creditors;
v
damage to the debtor’s business interests and employment prospects;
vi
the debtor still being liable for some debts;
vii
the debtor’s past financial transactions being investigated; and
viii
other restrictions or requirements imposed on the debtor as a result of the debtor’s own circumstances and actions.
The form and manner of certificate5
1
A certificate for sequestration granted by an authorised person on the application of a debtor shall be in the form of the Form set out in the Schedule to these Regulations.
2
The certificate for sequestration must be signed and dated by an authorised person and signed and dated by the debtor to the effect provided in the form of the Form set out in the Schedule to these Regulations.
3
A valid certificate for sequestration must in the case of the authorised persons referred to in regulation 3(1) be printed on the headed notepaper of the organisation to which the authorised person belongs, where the authorised person belongs to an organisation, or in other cases on the authorised person’s headed notepaper.
Fees6
A nil fee is chargeable for granting a certificate for sequestration.
The prescribed period7
The time period prescribed for a granted certificate for sequestration for the purposes of section 5(2B)(c)(ib) of the Act7 is 30 days.
SCHEDULEFORM
CERTIFICATE FOR SEQUESTRATION
(This note is not part of the Regulations)