PART 1Money advisers
Approved categories of money advisers4.
Subject to regulation 5, the following classes of persons are prescribed for the purposes of section 4(2)(b) of the Act as money advisers—
(a)
persons who—
(i)
are qualified to act as insolvency practitioners in accordance with sections 390 of the Insolvency Act 1986 M1 who are fully authorised, or partially authorised so to act in relation to individuals, within the meaning of 390A of that Act M2; or
(ii)
work for such an insolvency practitioner, who have been given authority by that insolvency practitioner to act on his or her behalf in providing money advice under the Act; 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 M3; 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 a local authority.
Persons who may not be approved money advisers5.
(1)
The following persons may not be a money adviser—
(a)
a sheriff officer or messenger-at-arms, or an employee of such a person;
(b)
a person or body providing financial services, or financial advice other than money advice, in the course of a business or otherwise for profit, or an employee of such a person, unless the person is a—
(i)
solicitor;
(ii)
chartered or certified accountant;
(iii)
a credit union registered under the Co-operative and Community Benefit Societies Act 2014 M4 or the Industrial and Provident Societies Act 1965 M5 by virtue of section 1 of the Credit Unions Act 1979 M6;
(c)
a person providing debt collection services, or an employee of such a person;
(d)
a person convicted of an offence involving theft, fraud or other dishonesty;
(e)
a person subject to a bankruptcy restrictions order (including an interim order) under section 155 or 160 of the Act M7 or subject to a bankruptcy restrictions order, or bound by a bankruptcy restrictions undertaking, under schedule 4A of the Insolvency Act 1986 M8;
(f)
a person in respect of whom a court has made a disqualification order under section 1, or who has had a disqualification undertaking accepted under section 1A, of the Company Directors Disqualification Act 1986 M9;
(g)
persons without a licence from the Money Advice Trust M10 to use the Common Financial Statement; or
(h)
persons whose approval is revoked or suspended under paragraph (2).
(2)
AiB may revoke or suspend the approval of a money adviser who fails without good cause—
(a)
to apply the common financial tool in accordance with Part 3; or
(b)
to comply with regulation 7.
(3)
AiB must provide written notice of the revocation or suspension to the money adviser (together with reasons for the decision to revoke or suspend).
(4)
AiB must provide written notice of the revocation or suspension to any debtor where it is known to AiB that the money adviser is acting as money adviser to that debtor.
Other matters on which a debtor must obtain advice6.
The following are prescribed for the purposes of section 4(1)(d) of the Act as matters on which the debtor must obtain advice from a money adviser—
(a)
the income and expenditure of the debtor in accordance with the common financial tool;
(b)
the evidence required to confirm the debts of the debtor in making the debtor application;
(c)
the debt advice and information package M11;
(d)
the options of a voluntary repayment plan, debt payment programme under the Debt Arrangement Scheme or a trust deed;
(e)
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 or 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.
Money advice on debtor applications: procedure on evidence and information7.
(1)
In advising under section 4 of the Act on a debtor application, a money adviser must obtain evidence of the debtor's income and expenditure.
(2)
A money adviser must retain records in relation to the advice given to the debtor (including the evidence obtained under paragraph (1)) in making a debtor application, for 2 years from the date on which the advice was given.
(3)
A money adviser must provide as required by AiB, information about a debtor's application (including evidence obtained under paragraph (1) or the debtor's consent to the application).
Certificate for sequestration: form and manner8.
(1)
A certificate for sequestration granted in accordance with section 9 of the Act must be in Form 2.
(2)
The certificate must be signed and dated to the effect provided in that form—
(a)
by the money adviser; and
(b)
by the debtor.
(3)
The certificate must be printed on the headed notepaper—
(a)
where the money adviser belongs to an organisation, of the organisation to which the money adviser belongs, or
(b)
in other cases, of the money adviser.
Certificate for sequestration: fee9.
No fee is chargeable for granting a certificate for sequestration.
Certificate for sequestration: prescribed period10.
The time period prescribed for a granted certificate for sequestration for the purposes of section 2(2)(f) or (8)(e)(ii) of the Act is 30 days.