Citation and commencement

1. These Regulations may be cited as the Debt Arrangement Scheme (Scotland) Amendment Regulations 2009 and come into force on 1st July 2009.

Amendments to the Debt Arrangement Scheme (Scotland) Regulations 2004

2.–(1) The Debt Arrangement Scheme (Scotland) Regulations 2004(2) are amended in accordance with regulations 3 to 28.

3. In regulation 2 (interpretation)-

(a) in paragraph (1), omit the definitions of "MATRICS" and "money adviser"; and

(b) after paragraph (3) insert-

"(4) An application is sent by electronic means, if it is sent initially and received at its destination by means of electronic equipment for the processing (which expression includes digital compression) or storage of data and entirely created, transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means, but does not include electronic facsimile transmission or mobile telephonic text messaging.".

4. For regulation 5(2) substitute-

"(2) No fee for inspection of the DAS Register shall be paid by a non-profit-making body established in the United Kingdom, including a Government department, the police and any credit union, on proof to the satisfaction of the DAS Administrator of non-profit-making status.

(3) In this regulation a "non-profit-making body" is a body which is not organised for the primary purpose of making a profit.".

5.–(1) For regulation 7 substitute-

"Advice of money adviser not required

7. A debtor is entitled to make an application for the approval, or the variation, of a debt payment programme without obtaining the advice of a money adviser notwithstanding section 3(1) and (2) of the Act(3).".

(2) Omit-

(a) regulations 8 to 12 (money advisers);

(b) regulation 18(3)(d) (information on the DAS Register);

(c) regulation 43(1)(a) (grounds for revocation);

(d) Schedule 4 (money adviser training); and

(e) in Schedule 5, paragraph 8, "money advisers".

6. In regulation 15(1) (functions and duty of a payments distributor)-

(a) in sub-paragraph (a), for "a money adviser" substitute "the DAS administrator"; and

(b) in sub-paragraph (c), for "money advisers" substitute "the DAS administrator".

7. In regulation 18 (information on the DAS Register)-

(a) in sub-paragraph (2)(za)(4) and paragraph (3), for "22(2A)" substitute "20(5)"; and

(b) in sub-paragraph (2)(bb)(b) after "31(1)" insert "or (2)".

8. In regulation 20 (application for approval)-

(a) for paragraph (2), substitute-

"(2) An application under paragraph (1)-

(a) shall be in form 3; and

(b) subject to paragraph (4) and regulation 2(4), shall be sent to the DAS administrator by electronic means."; and

(b) after paragraph (3) insert-

"(4) Notwithstanding paragraph (2)(b), the DAS administrator may accept applications sent other than by electronic means where the DAS administrator considers it to be reasonable to do so.

(5) A debtor who intends to make an application under this regulation may give written intimation of that intention to the DAS administrator; but a debtor is not to give such intimation on more than one occasion in any period of 12 months.".

9. In regulation 21 (debtors who may apply for approval)-

(a) omit paragraph (1); and

(b) in paragraph (2) after "approval" insert "by a debtor of a debt payment programme".

10. In regulation 22 (consent of every creditor), for paragraphs (2) to (5) substitute-

"(2) The DAS administrator shall submit a request for consent to each creditor known to the DAS administrator.

(3) The DAS administrator may dispense with the consent of a creditor where, within 35 days of making the request, consent has been obtained from-

(a) more than 50% of creditors by number; or

(b) creditors to whom are due more than 50% of the total debt included in a programme.

(4) Where a creditor does not consent to an application under paragraph (1), and that consent is not dispensed with, the approval of a debt payment programme under regulations 25 or 26 shall not be invalid by reason only of the lack of consent if the debtor did not know, and could not reasonably have known, the identity of the creditor.".

11. For regulation 25(1) (approval of agreed programmes), substitute-

"(1) The DAS administrator shall approve a debt payment programme where each creditor-

(a) has consented to an application for approval under regulation 22(1); or

(b) their consent has been dispensed with under regulation 22(3).".

12. In regulation 26(2) (approval by the DAS administrator)-

(a) after paragraph (a) insert-

"(aa) the number of debts in a programme;";

(b) in paragraph (g) omit "(deemed or otherwise)"; and

(c) omit paragraph (h).

13. After regulation 26 (approval by the DAS administrator), insert-

"Minimum amount payable

26A. The DAS administrator may not approve a debt payment programme under regulation 25 or 26 unless the minimum amount payable under the programme each month is the greater of-

(a) £100; or

(b) 1% of the total amount of debt included in the programme.".

14. In regulation 29(2) (standard conditions)-

(a) in paragraph (e) for "money adviser for a programme" substitute "DAS administrator"; and

(b) in paragraph (f) for "money adviser for the programme" substitute "DAS administrator" and for "adviser" on each occasion where it appears substitute "administrator".

15. For regulation 31 (notification of approval or rejection) substitute-

"(1) Where a debt payment programme is approved-

(a) the DAS administrator shall send to the debtor written notice of-

(i) the approval; and

(ii) any condition attached under regulation 30; and

(b) the approval shall have effect in accordance with regulation 28(2).

(2) Where a debt payment programme is rejected the DAS administrator shall send to the debtor written notice of-

(a) the rejection; and

(b) the reasons for the rejection.

(3) The DAS administrator shall intimate-

(a) the approval of an application to-

(i) each creditor known to the DAS administrator;

(ii) the clerk of a court that has made-

(aa) a conjoined arrestment order; or

(bb) an order or direction specified in regulation 26(2)(f)(ii) and (iii);

(iii) where payments are to be made under an earnings arrestment, the employer of the debtor; and

(iv) the payments distributor; or

(b) the rejection of an application to each creditor known to the DAS administrator.".

16. In regulation 31A(2)(b) (diligence in the period before a debt payment programme is approved(5)), for "31(1)" substitute "31(2)".

17. In regulation 33 (payment instruction to employer)-

(a) in paragraph (2), for "money adviser for the debt payment programme" substitute "DAS administrator"; and

(b) in paragraph (4)-

(i) for "a money adviser" substitute "the DAS administrator"; and

(ii) omit "(3)".

18. In regulation 35 (effect on a creditor)-

(a) in sub-paragraph (1)(d), for "a money adviser" on each occasion where it appears substitute "the DAS administrator"; and

(b) in paragraph (2) for "form 5(a)" substitute "writing".

19. For regulation 37 (application for variation) substitute-

"(1) An application to the DAS administrator for variation of a debt payment programme may be made by a debtor or a creditor.

(2) Where an application is made under paragraph (1) the DAS administrator shall intimate the application to each creditor taking part in the programme.

(3) Where a creditor makes an application under paragraph (1), the creditor shall intimate the application to the debtor.

(4) An application under paragraph (1) shall be in form 8.".

20. For regulation 40 (notification of approval or rejection of a variation) substitute-

"(1) Where a variation of a debt payment programme is approved the DAS administrator shall send to the debtor in writing-

(i) notice of the approval of the variation and its effect; and

(ii) written intimation of any condition attached under regulation 30.

(2) Where an application for variation of a debt payment programme is rejected the DAS administrator shall send to the debtor in writing-

(a) notice of the rejection; and

(b) the reasons for the rejection.

(3) The DAS administrator shall intimate in writing the reasons for, and effect of, the approval or rejection of an application for variation to-

(a) the payments distributor; and

(b) a creditor-

(i) taking part in the programme; and

(ii) who has applied for the variation.".

21. In regulation 41 (revocation on sequestration), for "a petition" substitute "an application".

22. In regulation 42(1)(a) (application for revocation) omit "a money adviser on behalf of".

23. In regulation 43 (grounds for revocation), after paragraph (3) insert-

"(4) On receipt of an application for revocation made under regulation 42, the DAS administrator shall provide the debtor with-

(a) a debt advice and information package; and

(b) information about variation of debt payment programmes.

(5) In this regulation "debt advice and information package" has the same meaning as in section 10(5) of the Act.".

24. For regulation 45 (notification of revocation) substitute-

• "The DAS administrator shall intimate in writing the revocation of a debt payment programme and the reasons for the revocation to-

  (a)

  the debtor;

  (b)

  each creditor known to the DAS administrator;

  (c)

  the payments distributor; and

  (d)

  where there is a payment instruction under regulation 33, the employer.".

25. In regulation 47 (report of completion) for "money adviser for the programme" substitute "DAS administrator".

26. For regulation 48 (notices by a money adviser: completion), substitute-

"Early completion

48. Where the creditors taking part in the programme agree in writing to completion before the end of the period of the programme, the DAS administrator shall intimate that agreement to the payments distributor.".

27. In regulation 49 (notification of completion)-

(a) omit paragraph (1); and

(b) for paragraph (2) substitute-

"(2) When a debt payment programme has been completed the DAS administrator shall intimate the completion in writing to-

(i) the debtor;

(ii) each creditor known to the DAS administrator; and

(iii) where there is a payment mandate under regulation 33, the employer.".

28. In Schedule 1-

(a) for form 3 (application for approval of a debt payment programme) substitute the form set out in Schedule 1;

(b) for form 6 (payment instruction to employer) substitute the form set out in Schedule 2;

(c) for form 8 (application for variation of a debt payment programme) substitute the form set out in Schedule 3;

(d) for form 10 (application for revocation of a debt payment programme) substitute the form set out in Schedule 4; and

(e) omit the following forms and the relative entries in the Arrangement of Forms:-

(i) form 1 (application for approval as a money adviser);

(ii) form 4 (proposal to creditor for a debt payment programme);

(iii) form 5 (notification of approval of a debt payment programme);

(iv) form 5(a) (notification of approval of a debt payment programme);

(v) form 9 (notification to creditor of determination of variation);

(vi) form 11 (notice of revocation);

(vii) form 13 (notice of completion by money adviser);

(viii) form 14 (confirmation of completion by DAS administrator); and

(ix) form 15 (notice to creditor of completion of a debt payment programme).

Regulation 28(a)

SCHEDULE 1 The Debt Arrangement Scheme (Scotland) Regulations 2004

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Regulation 28(b)

SCHEDULE 2 The Debt Arrangement Scheme (Scotland) Regulations 2004

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Regulation 28(c)

SCHEDULE 3 The Debt Arrangement Scheme (Scotland) Regulations 2004

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Regulation 28(d)

SCHEDULE 4 The Debt Arrangement Scheme (Scotland) Regulations 2004

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Explanatory Note

(This note is not part of the Regulations)

These Regulations amend the Debt Arrangement Scheme (Scotland) Regulations 2004 ("the principal Regulations").

Regulation 3 removes from regulation 2 of the principal Regulations definitions which are no longer required and inserts a description of "electronic means" for the purpose of making online applications.

Regulation 4 amends regulation 5 of the principal Regulations to make searches of the Debt Arrangement Scheme ("DAS") Register free of charge to non-profit-making bodies.

Regulation 5 substitutes a new regulation 7 which provides that a debtor is entitled to make applications under DAS without having obtained the advice of a money adviser. It also removes provisions referring to money advisers, who are no longer to be part of the DAS process. Some of their functions are to be taken over by the DAS administrator and regulations 6, 7, 14, 16 17, 18, 19, 22, 24, 25, 26 and 27 make consequential amendments.

Regulation 8 amends regulation 20(2) of the principal Regulations to provide that applications for approval of a debt payment programme may be in electronic form and that debtors may intimate an intention to apply for approval of a debt payment programme to the DAS Administrator but only once every 12 months.

Regulation 9 amends regulation 21 of the principal Regulations to remove the requirement that a debtor must have two or more debts before applying for approval of a debt payment programme.

Regulation 10 amends regulation 22 of the principal Regulations, which deals with the consent of creditors, to remove deemed consent and to give the DAS administrator a power to dispense with consent.

Regulation 11 amends regulation 25(1) of the principal Regulations to provide that applications shall be approved where the consent of creditors has been dispensed with.

Regulation 12 amends regulation 26 of the principal Regulations, which deals with the criteria to be taken into account by the DAS administrator when considering whether it is fair and reasonable to approve a dept payment programme where the consent of all creditors not been obtained or dispensed with to take into account the changes introduced by regulations 10 and 11 of these Regulations.

Regulation 13 introduces a minimum amount which can be paid monthly by inserting regulation 26A into the principal Regulations.

Regulation 15 substitutes a new regulation 31 of the principal Regulations, which deals with notification of approval or rejection of applications.

Regulation 20 deals with notification of approval or rejection of a variation and substitutes a new regulation 40 into the principal Regulations.

Regulation 21 makes a minor amendment to regulation 41 of the principal Regulations to reflect the terminology in the Bankruptcy and Diligence etc. (Scotland) Act 2007.

Regulation 23 amends regulation 43 of the principal Regulations to provide that a debtor who applies for revocation shall be provided with debt advice and information on variation.

Regulation 28 amends Schedule 1 to the principal Regulations to omit forms and to substitute the forms set out in Schedules 1 to 4 of these Regulations.