The Debt Arrangement Scheme (Scotland) Amendment Regulations 2014
| Jurisdiction | Scotland |
| Citation | SSI 2014/294 |
2014No. 294
DEBT
The Debt Arrangement Scheme (Scotland) Amendment Regulations 2014
5thNovember2014
for the purpose of regulation 1(2)for the purpose of regulation 1(2)
11thDecember2014
for the purpose of regulation 1(3)for the purpose of regulation 1(3)
1stApril2015
The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 2(3)(d), 4(5), 5(4), 7 and 62(2) of the Debt Arrangement and Attachment (Scotland) Act 2002( 1) and all other powers enabling them to do so.
A draft of these Regulations has been laid before and approved by resolution of the Scottish Parliament in accordance with section 62(4) of that Act( 2).
Citation and commencement
1. (1) These Regulations may be cited as the Debt Arrangement Scheme (Scotland) Amendment Regulations 2014.
(2) Subject to paragraph (3), they come into force on 11th December 2014.
(3) Regulations 8 except paragraph (3)(a) and (c), 9(1), 10, 21(5)(a), 22, Schedule 1 and Schedule 2 in respect of form 1 come into force on 1st April 2015.
Interpretation
2. In these Regulations, "the DAS Regulations" means the Debt Arrangement Scheme (Scotland) Regulations 2011( 3).
Amendment to the DAS Regulations
3. The DAS Regulations are amended in accordance with regulations 4 to 22.
Interpretation: Common Financial Tool, legal persons and other entities
4. In regulation 2(1) (interpretation: general)-
(a) after the definition of "appeal", insert-
""charity" means a body entered in the Scottish Charity Register under the Charities and Trustee Investment (Scotland) Act 2005( 4);
"Common Financial Statement" means the style and format for income and expenditure categories under that title (and, where relevant, related spread sheets, budget sheets, trigger figures, guidance materials and notes) published by the Money Advice Trust( 5);
"Common Financial Tool" means the method of assessing the amount of a debtor's assets, income, liabilities and expenditure provided for under section 5D (assessment of debtor's contribution) of the 1985 Act( 6) modified in accordance with Schedule A1( 7);";
(b) for the definition of "continuing money adviser", substitute-
""continuing money adviser" has the meaning given by regulation 12(3)( 8);";
(c) after the definition of "DAS Register", insert-
""debtor" means-
(a) an individual;
(b) a legal person;
(c) a trust; or
(d) an unincorporated body of persons;
"declaration of viability" has the meaning given by regulation 22A(7)(c)( 9);";
(d) after the definition of "joint debt payment programme", insert-
""legal person" means-
(a) a partnership;
(b) a limited partnership within the meaning of the Limited Partnerships Act 1907( 10); or
(c) a corporate body other than a company registered under the Companies Act 2006( 11);";
(e) after the definition of "money adviser", insert-
""nominated person" means a person specified by virtue of regulation 22A(7)(b);
"OSCR" means the Office of the Scottish Charity Regulator within the meaning of the Charities and Trustee Investment (Scotland) Act 2005( 12);"; and
(f) after regulation 2(1), insert-
"(1A) Any reference in these Regulations to a debtor (however described) does not include an entity referred to in section 6(2) of the 1985 Act (companies registered under the Companies Act 2006 or entities in respect of which an enactment provides, expressly or by implication, that sequestration is incompetent)( 13).".
Approved money adviser for legal persons and other entities
5. (1) For regulation 7(3) (debtor to have approved money adviser), substitute-
"(3) The money adviser who advises a debtor and intends to resign must assist a debtor in finding a replacement money adviser before the money adviser resigns.".
(2) After regulation 8 (approved categories of money advisers), insert-
"Approved money advisers: legal persons and other entities
8A. Where the debtor is a legal person, trust or unincorporated body of persons, the money adviser who advises the debtor must be a money adviser in the category specified in regulation 8(a).".
Approval of a money adviser
6. (1) In regulation 9 (approval of a money adviser)( 14)-
(a) for paragraphs (2) and (3), substitute-
"(2) The DAS Administrator may approve an application under paragraph (1), if satisfied that the applicant-
(a) has undergone training on the matters specified in Schedule 3;
(b) is not a person listed in regulation 10; and
(c) is a fit and proper person to be a money adviser."; and
(b) for the cross-reference in Schedule 3 substitute "Regulation 9(2)(a)".
(2) Regulation 7 of the Debt Arrangement Scheme (Scotland) Amendment Regulations 2013( 15) is revoked.
Functions and duty of a money adviser
7. In regulation 12 (functions and duty of a money adviser)-
(a) in paragraph (3), after "to a debtor" where it first occurs insert "or advises a debtor which is a legal person, trust or unincorporated body of persons";
(b) in both heads (i) and (ii) of paragraph (3)(b), after "adviser" insert "or any nominated person under regulation 22A(7)(b)";
(c) after paragraph (3)(b)(ii)-
(i) omit "and"; and
(ii) insert-
"(iia) on any resignation, the full name and business address of the replacement money adviser or nominated person; and"; and
(d) after regulation 12 insert-
"Additional functions and duty of a money adviser: legal persons and other entities
12A. Where the debtor is a legal person, trust or unincorporated body of persons a money adviser must-
(a) in any review under regulation 12(3)(a) include a declaration of viability;
(b) if unable to make such a declaration because the money adviser considers the debtor does not meet the requirements contained in regulation 22A(7)(c), apply as soon as reasonably practicable for revocation under regulation 41; and
(c) on becoming aware of information which causes the adviser to believe that a ground for revocation under regulation 42(1) is met, apply as soon as reasonably practicable for revocation under regulation 41.".
Common Financial Tool: consequential amendments, all debts due
8. (1) In regulation 12(1) (functions and duty of a money adviser)-
(a) after "money adviser" insert ", using the Common Financial Tool in the case of a debt payment programme for an individual,"; and
(b) at the end of sub-paragraph (d) insert ", in accordance with the Common Financial Tool in the case of a debt payment programme for an individual".
(2) At the end of regulation 12(3)(a) insert "(in accordance with the Common Financial Tool in the case of a debt payment programme for an individual)".
(3) After regulation 20(2) (application for approval)-
(a) insert-
"(2A) The debt payment programme applied for under paragraph (1) must provide for the payment of all debts due by the debtor at the time of making the application which a debt payment programme can provide for payment of, subject to regulation 22A(8)(b).";
(b) after paragraph (2A) so inserted, insert-
"(2B) Where the debtor is an individual the application must also contain-
(a) the statement of income and expenditure in form 1 as at that date completed in the style and format of the Common Financial Statement; and
(b) a statement-
(i) that the proposed payments are in accordance with the Common Financial Tool as assessed by the money adviser; and
(ii) any evidence or explanation required in applying that tool."; and
(c) after paragraph (2B) so inserted, insert-
"(2C) Where the debtor is a charity the application must also contain evidence that it has been intimated to OSCR.".
(4) In regulation 24 (approval of agreed programmes)-
(a) in paragraph (1), for "The" substitute "Subject to paragraph (1A), the"; and
(b) after regulation 24(1) insert-
"(1A) In the case of a debt payment programme for an individual, the debt payment programme may only be approved in accordance with the Common Financial Tool.".
(5) Before regulation 25(2)(a) (approval by the DAS Administrator) insert-
"(za) where the debtor is an individual, the Common Financial Tool;
(zb) where the debtor is an individual, any statement and evidence required under regulation 20(2B) to satisfy the DAS Administrator in applying the Common Financial Tool;".
(6) Before Schedule 1, insert Schedule A1 set out in Schedule 1 to these Regulations.
Information on the DAS Register
9. (1) In both regulation 19(2)(a) and (3) (information on the DAS Register), for "regulation 20(3)" substitute "section 4A(1) and 4B(1) of the 1985 Act( 16) or regulation 20(3).
(2) In regulation 19(3)-
(a) after "programme" where it last occurs insert ", and for each individual who has consented in relation to that debtor under regulation 22A(2)(a), (3), (4) or (5)"; and
(b) in sub-paragraph (c) after "business" insert "name and".
Application for approval: intention to apply and moratorium
10. For regulation 20(3) (intimation of intention to apply) substitute-
"(3) On revocation of a joint debt payment programme on the grounds that conditions in regulations 22(1)(b) or (2) no longer apply or under regulation 40A(1), a debtor who intends to apply may give written intimation of that intention to the DAS Administrator within 12 months of giving notice under section 4A(1) of the 1985 Act.".
Application for approval: legal persons and other entities
11. After regulation 20(4) (intimation of withdrawal) insert-
"(4A) Where the debtor is a legal person, trust or unincorporated body of persons-
(a) "habitually resident in Scotland" in paragraph (1) is to be taken to mean-
(i) having an established place of business in Scotland; or
(ii) constituted or formed under Scots law, and at any time carrying on business in Scotland( 17); and
(b) intimation under paragraph (4) may be given by a nominated person or a money adviser on the debtor's behalf.".
Debtors who may apply for approval, etc.
12. (1) For regulation 21(1) (debtors who may apply for approval) substitute-
"(1) Subject to paragraphs (2) and (3), a debtor may apply for approval of a debt payment programme-
(a)...
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