2014 No. 261 (C. 23)
The Bankruptcy and Debt Advice (Scotland) Act 2014 (Commencement No. 2, Savings and Transitionals) Order 2014
Made
Laid before the Scottish Parliament
Coming into force
The Scottish Ministers make the following Order in exercise of the power conferred by section 57(2) and (3) of the Bankruptcy and Debt Advice (Scotland) Act 20141 and all other powers enabling them to do so.
Citation and commencement1
This Order may be cited as the Bankruptcy and Debt Advice (Scotland) Act 2014 (Commencement No. 2, Savings and Transitionals) Order 2014 and comes into force on 1st April 2015.
Interpretation2
1
In this Order—
“the Act” means the Bankruptcy and Debt Advice (Scotland) Act 2014; and
“the 1985 Act” means the Bankruptcy (Scotland) Act 19852.
2
This Order is to be construed in accordance with section 73 (interpretation) of the 1985 Act3.
Day appointed3
The day appointed for the coming into force of the Act, insofar as not already in force, is 1st April 2015, except in respect of section 27 (recall of sequestration by Accountant in Bankruptcy) for the purpose of inserting section 17G(7) into the 1985 Act.
Savings and transitional arrangements
Sequestration before 1st April 20154
1
Except as mentioned in paragraph (3) and article 6, nothing brought into force by this Order has effect as regards any sequestration in respect of which—
a
the petition is presented before 1st April 2015; or
b
a debtor application was made before that date.
2
The 1985 Act, as in force immediately before 1st April 2015, continues to apply and have effect in relation to any such sequestration.
3
This article does not apply as regards the following provisions of the Act—
a
section 8 (moratorium on diligence),
b
section 12 (concurrent proceedings: recall),
c
section 20 (unclaimed dividends and unapplied balances),
d
section 22 (register of insolvencies),
e
section 24 (abolition of Edinburgh Gazette requirements),
f
section 25 (directions),
g
sections 26(1)(a), (2) and (3) and 27 (recall of sequestration),
h
section 34 (conversion of trust deed into sequestration),
i
sections 38 to 43 (review of decisions made by Accountant in Bankruptcy),
j
section 48 (renewal of inhibition period),
k
section 49 (division and sale of family home),
l
section 50 (effect of debtor discharge), and
m
in schedule 3—
i
paragraph 3(a) (moratorium on diligence and register of insolvencies),
ii
paragraphs 12 and 13 (expiry of inhibitory effect sequestration: recall),
iii
paragraphs 25 and 26 (review by Accountant in Bankruptcy of adjudication of claims),
iv
paragraph 31 (unclaimed dividends and unapplied balances), and
v
paragraph 35(b), (c) and (e) (definitions of “common financial tool”, “DAS register”, “debtor contribution order” and “debtor’s contribution”).
4
For the purposes of paragraph (1) the bankruptcy restrictions undertaking of a debtor is treated as sequestration of that debtor4.
Money advice5
1
A debtor application signed by the debtor before 1st April 2015 may be made on or after that date notwithstanding that the debtor has not obtained money advice in accordance with section 5C of the 1985 Act5.
2
To that extent it is to be treated as an incomplete application under section 11A(1) of the 1985 Act6.
Common financial tool6
1
This article applies to sequestrations to which article 4(1)(a) or (b) applies, unless they meet the conditions under section 5A of the 1985 Act (low income, low asset debtors)7.
2
Where an application is made on or after 1st April 2015 for variation of—
a
an income payment order, under section 32(4) of the 1985 Act; or
b
an income payment agreement, under section 32(4G)(b) of that Act on a change in the debtor’s circumstances,
the sheriff must have regard to the common financial tool8.
3
Where on or after 1st April 2015 a trustee is considering entering into a written agreement to vary an income payment agreement under section 32(4G)(a) of the 1985 Act on a change in the debtor’s circumstances, the trustee must have regard to the common financial tool.
4
In so applying the common financial tool, it is modified as follows—
a
b
any provision of those regulations in pursuance of section 5D(3) to (6) of the 1985 Act (assessment of debtor’s contribution) does not apply11.
5
For the avoidance of doubt this article does not prevent a sheriff or trustee having regard to other factors, including the amount initially determined by the order or provided for in the agreement (or any extant variation of either).
6
The introduction of the common financial tool is not itself a change in the debtor’s circumstances for the purposes of this article (or section 32(4) of the 1985 Act).
Moratorium on diligence7
Notice received by the Accountant in Bankruptcy on or after 1st April 2015 which is—
a
in accordance with section 4A(1) or 4B(1) of the 1985 Act12 (notice of intention to apply for sequestration, protected trust deed for debt payment programme); and
b
in the form required under the 1985 Act from that date13,
has effect as if given on 1st April 2015 notwithstanding that it was given before that date.
Recall of sequestration8
Section 24(1) (replacement of Edinburgh Gazette recall requirement) of the Act does not apply to a petition for recall of sequestration presented before 1st April 2015.
Applications for trustee directions9
Section 25 of the Act (application for trustee directions) does not apply to any application to the sheriff for directions made before 1st April 2015 (and any appeal from any such direction).
Review of decisions by Accountant in Bankruptcy10
1
The amendments in sections 38 to 42 of the Act (review of decisions by the Accountant in Bankruptcy) relevant to review by the Accountant in Bankruptcy of the following decisions of the Accountant in Bankruptcy do not apply—
a
to a determination notified before 1st April 2015 under section 13A(10)(b) (certificate of interim trustee discharge), or where notice is sent before that date under section 13B(4)(a)(iii) or (b) (discharge of Accountant in Bankruptcy as interim trustee), of the 1985 Act14,
b
to a direction given under section 18(1) (direction for interim preservation of estate) of the 1985 Act15 before 1st April 2015,
c
to a refusal to award sequestration under section 15(3A) (debtor application) of the 1985 Act16 before 1st April 2015,
d
where notice is sent before 1st April 2015 under section 26A(3) (discharge of Accountant in Bankruptcy as trustee) of the 1985 Act17,
e
to a determination notified before 1st April 2015 under section 27(3)(b) (certificate of original trustee’s discharge) of the 1985 Act18,
f
to claims accepted or rejected in a list sent before 1st April 2015, or notification given before that date, under section 49(2A) or (4) respectively (adjudication of claims) of the 1985 Act19, or
g
to a determination notified before 1st April 2015 under section 57(3)(b) (certificate of trustee discharge), or where notice is sent before that date under section 58A(4)(b) (discharge of Accountant in Bankruptcy as trustee), of the 1985 Act20.
2
Sections 38 to 42 of the Act do not apply to any decision by the Accountant in Bankruptcy which is subject to court proceedings by way of appeal or review before 1st April 2015.
Power of trustee in relation to debtor’s family home11
Section 49 of the Act (procedure on power of trustee in relation to debtor’s family home) does not apply to any court proceedings commenced before 1st April 2015 (and any appeal in respect of those proceedings).
Trust deeds granted before 1st April 201512
1
Nothing brought into force by this Order except section 8 (moratorium on diligence) has effect as regards any trust deed granted before 1st April 2015.
2
The 1985 Act as in force immediately before 1st April 2015, continues to apply and have effect in relation to any such trust deed.
(This note is not part of the Order)
(This note is not part of the Order)
The following provisions of the 2014 Act were brought into force by commencement order made before the date of this Order:—
Provision | Date of Commencement | S.S.I.No. |
---|---|---|
s.1(2) (partially) for the purpose of making subordinate legislation | 30th June 2014 | |
s.2 (partially) for the purpose of making subordinate legislation | ||
s. 3 | ||
s.4 (partially) for the purpose of making subordinate legislation | ||
s.5 for the purpose of making subordinate legislation | ||
s. 7 (partially) for the purpose of making subordinate legislation | ||
s. 9(1) (partially) for the purpose of making subordinate legislation | ||
s. 17 (partially) for the purpose of making subordinate legislation | ||
s. 19 (partially) for the purpose of making subordinate legislation | ||
s. 21 (partially) for the purpose of making subordinate legislation | ||
s. 22 (partially) for the purpose of making subordinate legislation | ||
s. 23(1) (partially) for the purpose of making directions and subordinate legislation | ||
s. 23(3) (partially) for the purpose of making subordinate legislation | ||
s.36 | ||
s.44 | ||
s.46 (partially) for the purpose of making subordinate legislation | ||
s. 48 (partially) for the purpose of making subordinate legislation | ||
s. 53(1) (partially) | ||
s. 53(2) and (4) (partially) for the purpose of making subordinate legislation | ||
s.53(3) | ||
s. 56 (partially) | ||
sch 1 (partially) for the purpose of making subordinate legislation | ||
In sch 3— para 1 | ||
para 2 (partially) | ||
para 34 | ||
para 35(h) | ||
para 38 | ||
Sch 4 (partially) |