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PART IIIS DILIGENCE AGAINST EARNINGS

Supplementary provisionsS

67 Equalisation of diligences not to apply.S

Paragraph [F11 of schedule 7 of the Bankruptcy (Scotland) Act 2016] (equalisation of arrestments and poindings used within 60 days before, and 4 months after, apparent insolvency) shall not apply in relation to an earnings arrestment, a current maintenance arrestment or a conjoined arrestment order.

Textual Amendments

F268. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

Textual Amendments

69 Restriction on liability of employer in operating diligence against earnings.S

(1)An employer operating an earnings arrestment or a current maintenance arrestment or a conjoined arrestment order shall be entitled to apply regulations made under section 49(7), 53(3) or 63(6) of this Act before receiving intimation under section 49(8), 53(4) or 63(7) of this Act of the making of the regulations.

(2)Where a pay-day occurs within a period of 7 days after the date of—

(a)service on the employer of an earnings arrestment schedule or a current maintenance arrestment schedule or a copy of a conjoined arrestment order or of a variation thereof; or

(b)intimation under section 49(8), 53(4) or 63(7) of this Act to the employer of the making of regulations,

the employer shall be entitled, but shall not be required, on that day to operate the arrestment or order or, as the case may be, to give effect to the regulations.

(3)Where, in accordance with subsection (2) above, the employer on a pay-day (referred to below as “the previous pay-day”)—

(a)does not operate an earnings arrestment, current maintenance arrestment or conjoined arrestment order; or

(b)does not give effect to regulations,

he shall not include in any sum deducted from the net earnings of the debtor on a subsequent pay-day under the arrestment or order any sum in respect of the debtor’s net earnings on the previous pay-day.

(4)No claim may be made by—

(a)the debtor or the creditor against the employer in respect of any deduction which has, or ought to have, been made by the employer from the debtor’s net earnings, or any payment which has been, or ought to have been, made by him, under an earnings arrestment or a current maintenance arrestment; or

(b)the debtor, the sheriff clerk or any creditor against the employer in respect of any such deduction or payment which has been, or ought to have been, made under a conjoined arrestment order,

more than one year after the date when the deduction or payment has, or ought to have, been made.

(5)The employer shall not be liable to the debtor for any deduction made by him from the debtor’s net earnings—

(a)under an earnings arrestment unless and until he receives intimation—

(i)from the creditor under section 57(4) of this Act that the debt recoverable has been paid or otherwise extinguished or has ceased to be enforceable by diligence;

(ii)from the sheriff clerk under section 9(7)(b) or 50(1) of this Act that an order has been made recalling the arrestment or, as the case may be, declaring that it is invalid or has ceased to have effect;

(iii)that the debtor’s estate has been sequestrated; or

(iv)from the creditor that he has abandoned the arrestment;

(b)under a current maintenance arrestment unless and until he receives intimation—

(i)from the creditor under section 57(4) of this Act that the arrestment has ceased to have effect;

(ii)from the sheriff clerk under section 55(3) of this Act that an order has been made recalling the arrestment or declaring that the arrestment is invalid or has ceased to have effect;

(iii)that the debtor’s estate has been sequestrated; or

(iv)from the creditor that he has abandoned the arrestment.

F370 Execution and intimation of copies.S

(1)When an officer of court serves an earnings arrestment schedule or a current maintenance arrestment schedule on the employer of the debtor he shall [F4take all reasonably practicable steps to] intimate a copy of the schedule to the debtor.

(2)Failure to intimate a copy of the schedule to the debtor shall not by itself render the arrestment invalid.

(3)Service of any such schedule shall be by registered or recorded delivery letter or, if such a letter cannot be delivered, by any other competent mode of service.

(4)The certificate of execution of an earnings arrestment or a current maintenance arrestment shall be signed by the officer of court who effected the service.

[F5(4A)An employer on whom an earnings arrestment schedule or a current maintenance arrestment schedule is served shall, as soon as is reasonably practicable—

(a)intimate a copy of it to the debtor; and

(b)notify the debtor of—

(i)the date on which the first deduction is made; and

(ii)the sum so deducted.

(4B)An employer on whom a copy of a conjoined arrestment order is served shall, as soon as is reasonably practicable, notify the debtor of the matters mentioned in sub-paragraphs (i) and (ii) of subsection (4A)(b) above.]

(5)Section 17(1) of this Act shall apply to the service of an earnings arrestment schedule, a current maintenance arrestment schedule or a conjoined arrestment order as it applies to the execution of a poinding except where such service is by post.

Textual Amendments

F3S. 70: by Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), s. 61, Sch. 3 Pt. 1 para. 17(8) (with s. 63), it is provided (30.12.2002) that: "In section 70(1)(b) (which stipulates the dates on which an earnings arrestment schedule, current maintenance arrestment schedule or conjoined arrestment order may not be served), for "17(1) of this Act" there is substituted "12(1) of the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17)"."

F4Words in s. 70(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 202(2), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(d) (with arts. 4-6, 10, 11, 15) (as amended: (23.2.2009) by S.S.I. 2009/67, art. 7; (31.1.2011) by S.S.I. 2011/31, art. 5(a); and (4.10.2014) by S.S.I. 2014/173, arts. 1(2), 3)

F5S. 70(4A)(4B) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 202(3), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(d) (with arts. 4-6, 10, 11, 15) (as amended: (23.2.2009) by S.S.I. 2009/67, art. 7; (31.1.2011) by S.S.I. 2011/31, art. 5(a); and (4.10.2014) by S.S.I. 2014/173, arts. 1(2), 3)

[F670AEmployer's duty to provide informationS

(1)Where an employer receives, in relation to a debtor—

(a)an earnings arrestment schedule;

(b)a current maintenance arrestment schedule; or

(c)a copy of a conjoined arrestment order,

the employer shall, as soon as is reasonably practicable, send to the creditor or, in the case of a conjoined arrestment order, the sheriff clerk, the information mentioned in subsection (3) below.

(2)The employer shall, provided the debt has not been extinguished, send, on or as soon as is reasonably practicable after the dates mentioned in subsection (4) below, to the creditor or, as the case may be, the sheriff clerk the information mentioned in subsection (3) below.

(3)The information referred to in subsection (1) above is—

(a)how the debtor is paid (whether weekly, monthly or otherwise);

(b)the date of the debtor's pay-day next following—

(i)where subsection (1) above applies, receipt of the schedule or order; or

(ii)where subsection (2) above applies, the date mentioned in subsection (4) below;

(c)the sum deducted on that pay-day and the net earnings from which it is so deducted; and

(d)any other information which the Scottish Ministers may, by regulations, prescribe.

(4)The dates referred to in subsection (2) above are—

(a)the later of—

(i)6 April next following receipt of the schedule or order; or

(ii)the day falling 6 months after receiving the schedule or order; and

(b)each 6 April thereafter.

(5)Notwithstanding subsections (1) and (2) above, the employer shall, if the debtor ceases for whatever reason to be employed by the employer, give notice, as soon as is reasonably practicable, to the creditor or, as the case may be, the sheriff clerk—

(a)of that fact; and

(b)in so far as is known to the employer, the name and address of any new employer of the debtor.

(6)Where an employer sends information under subsection (1) or (2) above or gives notice under subsection (5) above, the employer shall, as soon as is reasonably practicable, send a copy of that information or notice to the debtor.

Textual Amendments

F6Ss. 70A-70D inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 203, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(d) (with arts. 4-6, 10, 12, 15) (as amended: (23.2.2009) by S.S.I. 2009/67, art. 7; (31.1.2011) by S.S.I. 2011/31, art. 5(a); and (4.10.2014) by S.S.I. 2014/173, arts. 1(2), 3)

70BFailure to give notice under section 70A(5)S

(1)Where an employer fails without reasonable excuse to give notice under section 70A(5) of this Act, the sheriff may, on the application of any creditor, make an order requiring the employer—

(a)to provide such information as is known to the employer as to the debtor's employment after ceasing to be employed by that employer;

(b)to pay to the creditor an amount not exceeding twice the sum which the employer would have been required to deduct on the debtor's next pay-day had the debtor still been employed by that employer.

(2)Where a sum is paid by virtue of an order under subsection (1)(b) above—

(a)the debt owed by the debtor to the creditor shall be reduced by that sum; and

(b)the employer shall not be entitled to recover that sum from the debtor.

(3)An employer aggrieved by an order under subsection (1) above may, before the expiry of the period of 14 days beginning with the day on which the order is made, appeal, on point of law only, to the sheriff principal, whose decision shall be final.

Textual Amendments

F6Ss. 70A-70D inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 203, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(d) (with arts. 4-6, 10, 12, 15) (as amended: (23.2.2009) by S.S.I. 2009/67, art. 7; (31.1.2011) by S.S.I. 2011/31, art. 5(a); and (4.10.2014) by S.S.I. 2014/173, arts. 1(2), 3)

70CCreditor's duty to provide informationS

(1)A creditor who is receiving payment from a debtor by virtue of—

(a)an earnings arrestment;

(b)a current maintenance arrestment; or

(c)a conjoined arrestment order,

shall, provided the debt has not been extinguished, send, on or as soon as is reasonably practicable after the dates mentioned in subsection (2) below, to the employer or, in the case of a conjoined arrestment order, the sheriff clerk the information mentioned in subsection (3) below.

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

(a)the later of—

(i)6 April next following service of the schedule of arrestment or, as the case may be, order; or

(ii)the day falling 6 months after the service of the schedule or order; and

(b)each 6 April thereafter.

(3)The information referred to in subsection (1) above is—

(a)the sum owed by the debtor to the creditor;

(b)the amounts received by the creditor by virtue of the arrestment or order; and

(c)the dates of payment of those amounts.

Textual Amendments

F6Ss. 70A-70D inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 203, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(d) (with arts. 4-6, 10, 12, 15) (as amended: (23.2.2009) by S.S.I. 2009/67, art. 7; (31.1.2011) by S.S.I. 2011/31, art. 5(a); and (4.10.2014) by S.S.I. 2014/173, arts. 1(2), 3)

Modifications etc. (not altering text)

70DDebtor's duty to provide informationS

Where a debtor ceases to be employed by an employer who is deducting sums under this Part of this Act, the debtor shall give notice to the creditor or, where those sums are being deducted by virtue of a conjoined arrestment order, the sheriff clerk—

(a)of that fact; and

(b)of the name and address of any new employer.]

Textual Amendments

F6Ss. 70A-70D inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 203, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(d) (with arts. 4-6, 10, 12, 15) (as amended: (23.2.2009) by S.S.I. 2009/67, art. 7; (31.1.2011) by S.S.I. 2011/31, art. 5(a); and (4.10.2014) by S.S.I. 2014/173, arts. 1(2), 3)

71 Employer’s fee for operating diligence against earnings.S

On any occasion on which an employer makes a payment to a creditor under an earnings arrestment or a current maintenance arrestment or to the sheriff clerk under a conjoined arrestment order, he may charge the debtor a fee of 50 pence or such other sum as may be prescribed in regulations made by the Lord Advocate which shall be deductible from the amount of the debtor’s net earnings after any deduction has been made from them under section 47, 51 or 60 of this Act.

Modifications etc. (not altering text)

72 Effect of sequestration on diligence against earnings.S

(1)This section shall have effect where a debtor’s estate is sequestrated.

(2)Any existing earnings arrestment, current maintenance arrestment or, subject to subsection(3) below, conjoined arrestment order [F7or deduction from earnings order under the Child Support Act 1991] shall cease to have effect on the date of sequestration.

(3)Any sum paid by the employer to the sheriff clerk under a conjoined arrestment order on a pay-day occurring before the date of sequestration shall be disbursed by the sheriff clerk under section 64 of this Act notwithstanding that the date of disbursement is after the date of sequestration.

[F8(3A)Any sum deducted by the employer under such a deduction from earnings order made before the date of sequestration shall be paid to the Secretary of State, notwithstanding that the date of payment will be after the date of sequestration.]

(4)The execution of an earnings arrestment or the making of a conjoined arrestment order shall not be competent after the date of sequestration to enforce a debt in respect of which the creditor is entitled to make a claim in the sequestration.

[F9(4A)A deduction from earnings order under the said Act shall not be competent after the date of sequestration to secure the payment of any amount due by the debtor under a [F10maintenance assessment] [F10maintenance calculation] within the meaning of that Act in respect of which a claim could be made in the sequestration.]

(5)In this section “date of sequestration” has the same meaning as in section [F1122(7) of the Bankruptcy (Scotland) Act 2016].

73 Interpretation of Part III.S

(1)In this Part of this Act—

(2)Subject to subsection (3) below, in this Part of this Act “earnings” means any sums payable to the debtor—

(a)as wages or salary;

(b)as fees, bonuses, commission or other emoluments payable under a contract of service or apprenticeship;

(c)as a pension, including a pension declared to be alimentary, an annuity in respect of past services, (whether or not the services were rendered to the person paying the annuity), and any periodical payments of compensation for the loss, abolition, relinquishment, or diminution in earnings of any office or employment; or

(d)as statutory sick pay.

(3)The following shall not be treated as earnings—

(a)a pension or allowance payable in respect of disablement or disability;

(b)any sum the assignation of which is precluded by [F19section 356 of the Armed Forces Act 2006] [F20unless it is a sum consisting of pay or allowance payable by his employer to him as a special member of a reserve force (within the meaning of the Reserve Forces Act 1996)];

F21(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)any occupational pension payable under any enactment which precludes the assignation of the pension or exempts it from diligence;

[F22(da)a tax credit (within the meaning of the Tax Credits Act 2002);]

(e)a pension, allowance or benefit payable under any enactment relating to social security;

(f)a guaranteed minimum pension within the meaning of the M4Social Security Pensions Act 1975;

(g)a redundancy payment within the meaning of [F23the Employment Rights Act 1996].

F24(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)Any question arising as to who is the chief officer in Scotland of a department or body referred to in paragraph (b) of the definition of “employer” in subsection (1) above shall be referred to and determined by the Minister for the Civil Service, and a document purporting to set out a determination of the Minister and signed by an official of the Minister shall be sufficient evidence of that determination.

Textual Amendments

F12Words in s. 73(1) inserted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 201(4), 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(d) (with arts. 4-6, 10, 14, 15) (as amended: (23.2.2009) by S.S.I. 2009/67, art. 7; (31.1.2011) by S.S.I. 2011/31, art. 5(a); and (4.10.2014) by S.S.I. 2014/173, arts. 1(2), 3)

F13Word in s. 73(1) omitted (1.8.2014 as notified in the Edinburgh Gazette dated 27.6.2014 (Issue 27425)) by virtue of The International Recovery of Maintenance (Hague Convention 2007) (Scotland) Regulations 2012 (S.S.I. 2012/301), reg. 1(b), sch. para. 1(5)(a)

F15Words in s. 73(1) inserted (1.8.2014 as notified in the Edinburgh Gazette dated 27.6.2014 (Issue 27425)) by The International Recovery of Maintenance (Hague Convention 2007) (Scotland) Regulations 2012 (S.S.I. 2012/301), reg. 1(b), sch. para. 1(5)(b)

F16Words in s. 73(1) (definition of "net earnings", para. (c)) substituted (5.4.1993) by Child Support Act 1991 (c. 48, SIF 20), s. 58(13), Sch. 5 para. 8(6)(a) (with s. 9(2)); S.I. 1992/2644, art. 2.

F17In s. 73(1) (definition of "net earnings"), para. (d) added (5.4.1993) by Child Support Act 1991 (c. 48, SIF 20), s. 58(13), Sch. 5 para. 8(6)(b) (with s. 9(2)); S.I. 1992/2644, art. 2.

F18Words in s. 73(1) substituted (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 204, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(d) (with arts. 4-6, 10, 15) (as amended: (23.2.2009) by S.S.I. 2009/67, art. 7; (31.1.2011) by S.S.I. 2011/31, art. 5(a); and (4.10.2014) by S.S.I. 2014/173, arts. 1(2), 3)

F19Words in s. 73(3)(b) substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 16 para. 109; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

F20Words in s. 73(3) inserted (1.1.1999) by S.I. 1998/3086, reg. 6(2)

F21S. 73(3)(c) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 205, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(d) (with arts. 4-6, 10, 13, 15) (as amended: (23.2.2009) by S.S.I. 2009/67, art. 7; (31.1.2011) by S.S.I. 2011/31, art. 5(a); and (4.10.2014) by S.S.I. 2014/173, arts. 1(2), 3)

F23Words in s. 73(3)(g) substituted (22.8.1996) by 1996 c. 18, ss. 240, 243, Sch. 1 para. 31 (with ss. 191-195, 202)

F24S. 73(4) repealed (1.4.2008) by Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), ss. 205, 227(3) (with s. 223); S.S.I. 2008/115, art. 3(1)(d) (with arts. 4-6, 10, 13, 15) (as amended: (23.2.2009) by S.S.I. 2009/67, art. 7; (31.1.2011) by S.S.I. 2011/31, art. 5(a); and (4.10.2014) by S.S.I. 2014/173, arts. 1(2), 3)

Marginal Citations