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ENFORCEMENT OF CIVIL OBLIGATIONS IN SCOTLAND: ANALYSIS OF CONSULTATION RESPONSES
PART 5 TYPES OF ENFORCEMENT
A. DILIGENCE ON THE DEPENDENCE
Q5A.1 Consultees are invited to comment or to indicate their support for the reforms proposed.
Q5A.2 In the event that alternative arrangements for attachment of corporeal movable pass into law, should provisional and protective measures be applied?
There is substantial support for the reforms of diligence on the dependence proposed, and a consensus view that provisional and protective measures should be applied in the event that alternative arrangements for attachment of corporeal movable pass into law.
B. ADMIRALTY ARRESTMENT
Q5B.1 Consultees are invited to comment or to indicate their support for the reforms proposed.
There is broad support for the proposed reforms to admiralty arrestment, with some respondents indicating that questions of detail remain to be answered.
C. DILIGENCE AGAINST EARNINGS
Q5C.1(a) Should current maintenance arrestments rank equally with earnings arrestments?
(b) Or should current maintenance arrestments involving child maintenance have priority over earnings arrestments?
There was broad support for current maintenance arrestments ranking equally with earnings arrestments with the exception of maintenance arrestments involving child maintenance which should have priority.
Q5C.2 Should student loan DEOs be treated as earnings arrestments for the purpose of a conjoined arrestment order?
There was almost universal support for treating student loan DEOs as earnings arrestments for the purpose of a conjoined arrestment order.
Q5C.3 Should the fee which may be deducted from earnings by employers operating an arrestment against earning be increased to 1?
Whilst most respondents are in favour of raising the fee which employers might deduct to 1, several argued that the fee should be abolished since many employers do not deduct it and, although a small sum for employers, it can be of some consequence to low paid debtors.
Q5C.4 Should the definition of the place of execution of an earnings arrestment or current maintenance arrestment for the purposes of a conjoined arrestment order be clarified in the 1987 Act?
There was unanimous support for clarifying the definition in the 1987 Act of the place of execution of an earnings arrestment or current maintenance arrestment for the purposes of a conjoined arrestment order.
Q5C.5 Should holiday pay be aggregated in a single pay period for the purposes of determining deductions from earnings?
The majority of respondents oppose holiday pay being aggregated on the grounds that this has been an unfair system in the past.
Q5C.6 Are current arrangements for confidentiality marking of schedules transmitted by post satisfactory?
There is a majority view that current arrangements for confidentiality marking of schedules transmitted by post are not satisfactory as individual confidentiality can be compromised.
Q5C.7 Should the copy schedule of arrestment served on the debtor provide details of the debtor's right to apply for time to pay and an application form?
Most respondents are in favour of the copy schedule of arrestment providing details of the debtor's right to apply for time to pay, and an application form.
Q5C.8 Should information about arrestments against earnings be included within a general education programme about enforcement?
All respondents agree that information about arrestments against earnings should be included in a general education programme about enforcement.
Q5C9(a) Should the arresting creditor be required to report to the court details of the efforts made when service of the copy schedule could not be effected on the debtor?
(b) Or should employers be required to transmit a copy of the schedule to their employee notifying the employee of the date on which the first deduction is to be made and the amount?
(c) Or is neither measure necessary?
Overall respondents favour employers transmitting a copy of the schedule to their employee notifying them of the date on which the first deduction is to be made from their salary and the amount.
5C.10 (a) Should arrestment schedules include more detailed information about the identity of the employee? b) If so, what additional information should be specified where known?)
There is substantial support for arrestment schedules to include more detailed information about the identity of the employee although a view that it should not be obligatory on the creditor to provide additional information.
Q5C.11 Should the debtor, employer and creditor be required to exchange a flow of information amongst themselves regarding employment status, earnings, deductions made and the debt outstanding?
There is no clear cut position on whether the debtor, employer and creditor should be required to exchange a flow of information amongst themselves regarding employment status, earnings, deductions made and the debt outstanding. Each respondent's area of interest impacts on the type of information they wish to see made available and to whom.
Q5C.12 Should efforts be made to devise arrangements for arrestments against earnings in cross-border situations?
There is general support for devising arrangements for arrestments against earnings in cross-border situations.
Q5C.13 Should non-fisherman seamen's wages continue to be exempt from arrestments against earnings?
The consensus from respondents is that in a time of instant communication there is no longer any reason why non-fisherman seamen's wages should continue to be exempt form arrestments against earnings.
Q5C.14 Should occupational pensions continue to be exempt from arrestments against earnings?
There is a majority view that it would be discriminatory to continue to exempt public sector pensions from arrestments against earnings and that therefore such exemption should cease.
Q5C.15 Should local authorities' existing ability for benefit deductions orders be adjusted to enable applications to be made prior to obtaining a summary warrant?
Most respondents support the proposal that local authorities need not obtain a summary warrant before applying for a benefit deductions order on the grounds that it would avoid any further charges, principally the 10% surcharge.
D. ARRESTMENT AND ACTION OF FURTHCOMING
Q5D.1 Should the amount of property attached by an arrestment in execution be restricted in the manner proposed?
There is almost complete agreement with the proposals regarding restricting the amount of property attached by an arrestment in execution.
Q5D.2 In cases where an arrestment is served in relation to an account of a debtor who is already subject to an earnings arrestment or is in receipt of social security benefits, should reform be introduced
(a) as indicated in option 1
(b) as indicated in option 2
(c) as indicated in option 3
(d) by alternative means?
Most respondents are agreed that although "something has to be done" in instances where an arrestment is made in relation to an account of a debtor who is already subject to an earnings arrestment or is in receipt of social security benefits, this is a complex and difficult area to which there is no obvious or easy solution. Various views were expressed by respondents from different sectors.
Q5D.3 Should the law relating to actions of furthcoming be reformed to provide for automatic release of property to a creditor following service of an arrestment in execution subject to a 28 day period of objection?
There is substantial support for the proposal to reform the law relating to actions of furthcoming being reformed to provide for automatic release of property to a creditor following service of an arrestment in execution subject to a 28 day period of objection.
Q5D.4 Should all forms of schedule of arrestment, in execution and otherwise, be modernised and prescribed by rules of court?
There is unanimity of agreement that all forms of schedule of arrestment be modernised and prescribed by rules of court.
E. DILIGENCE CONCERNING HERITABLE PROPERTY
Q5E.1 Consultees are invited to comment on the reforms proposed for (a) inhibition (b) adjudication for debt (c) land attachment (d) attachment orders.
There is general support for the reforms proposed for inhibition, adjudication for debt, land attachment, and attachment orders with some specific comment on particular aspects.
Q5E.2 Should sequestration for rent be abolished?
Q5E.3 Should residual availability of mails and duties be abolished?
A number of respondents oppose abolition of sequestration for rent, particularly in cases of tenants in commercial properties. Most respondents support the abolition of residual availability of mails and duties. In both these cases, specific questions of law have been raised.
Q5E.4 Should service of a charge prior to execution of a warrant for ejection
(a) be necessary in all cases?
(b) if so should there be a uniform period of charge of 14 days?
(c) should the form of charge be revised to include information about source of assistance and support?
There is almost total support for service of a charge prior to execution of a warrant for ejection, with agreement to 14 days, and support for revising the form of charge.
Q5E.5 Should the procedure for executing a warrant for ejection be reformed to:
(a) dispense with the requirement to chalk the doors or post a notice of ejection?
(b) clarify the hours during which an ejection may take place?
(c) prohibit ejection on specified days such as Sundays, Christmas day or any other day?
The majority of respondents wish to dispense with chalking doors and posting notices of ejection. They support clarifying the hours during which an ejection may take place, and prohibiting ejection on specified days.
Q5E.6 Should provision be made for
(a) disposal of any possessions left in the premises?
(b) if so, what requirement should be introduced?
Respondents wish to see a situation where proprietors or creditors are required to store possessions for a specified time at a set rate.
Q5E.7 To what extent does the need to clarify and modernise the law and procedures, in relation to recovery of possession of heritable property, identified by the Scottish Law Commission, remain necessary and appropriate?
The consensus from respondents is that there is a need to clarify and modernise the law and procedures in relation to recovery of possession of heritable property.
F. ATTACHMENT OF MONEY
Q5F.1 Consultees are invited to comment on the reforms proposed for attachment of money
All respondents who commented approve the proposed reforms for the attachment of money.
G. CIVIL IMPRISONMENT
Q5G.1 Should civil imprisonment continue to be available for failure to pay aliment for a child?
Or Q5G2. for failure to pay aliment for a spouse?
There is a majority view in favour of maintaining the possibility of civil imprisonment for failure to pay aliment for both children and spouses. Opponents argue that there are alternative diligences which can be used.
H. DELIVERY
Q.5H.1 Should an order protecting the identity of a child always accompany an order granted by the court for delivery of a child?
There is almost universal support for protecting the identity of a child, although the practical point is made that in searching for children it is often to necessary to identify the child to those who might know of his/her whereabouts.
PART 6 ENFORCEMENT AUTHORISED BY A SUMMARY WARRANT
Q.6.1 Should it be competent to do diligence on the authority of a summary warrant either:
(a) following service of charge for payment?
(b) following service of a notice in standard terms upon which it is competent to apply for a time to pay order?
Q.6.2 If yes to option (b) should the summary warrant notice be accompanied by advice and information for debtors?
There are two strong and opposing camps on the question of doing diligence on a summary warrant following service of charge for payment, or doing diligence on a summary warrant following service of a notice upon which the debtor can apply for a time to pay order. Respondents views are based on their position as either money advisers, enforcement agencies, or local authorities. Broadly speaking the first two support the charge for payment, whilst the third support service of a notice. Those who support service of a notice also favour advice and information for the debtor.
PART 7 MISCELLANEOUS ENFORCEMENT AND OTHER PROCEDURAL ISSUES
A. WARRANT, INTIMATION AND CHARGE
Q.7A.1(a) Should there be a unified approach to the authority conferred by a warrant for enforcement?
(b) if so, should the form of the warrant be prescribed by rules of court subject to amendment or prescription in regulations made by the Scottish Ministers?
There was consensus that there should be a unified approach to the authority conferred by a warrant for enforcement but differing views on prescription by rules of court and regulation by Scottish Ministers.
Q7A.2(a) Should there be standard arrangements for intimation of a decree or equivalent?
(b) if so, should the onus be placed upon the successful party to do so upon his receipt of the extract or certified copy?
There is overall support for standard arrangements for intimation of a decree or equivalent, and overall support for the placing the onus on the successful party to do so.
Q7A.3 In the event that a general rule for intimation of a decree or equivalent was introduced, for which methods of enforcement should additional personal service of a charge remain necessary?
The majority of respondents commented that personal service of a charge should remain necessary in respect of eviction cases. Others suggest it might also be retained for sequestration, or any other diligence such as earnings arrestment and attachment of moveable property.
Q7A.4 In cases other than those where personal service would be appropriate, what methods of intimation would be appropriate (for example is existing methods of service of judicial documents or some other standard)?
Most respondents commented that the existing method of service of judicial documents is sufficient and no change is required.
B. INFORMATION AND ADVICE
Q7B.1 For provision of information and advice about the enforcement system
(a) where are the greatest areas of need? (b) what types of information and advice about the enforcement system should be made available? (c) by what means should they be delivered?
The area of greatest need for information and advice about enforcement action is considered to be the lack of knowledge about the enforcement system amongst the general public, and particularly amongst those most vulnerable to having enforcement of decree against them. Individuals need to know about forms of diligence and their rights in relation to these, and it is suggested that the information needs should be met using a variety of media, face to face support, and plain English publications. Access to high quality money advice is seen as essential.
C. FORMS AND FEES
Q.7C.1 Consultees are invited to comment on the proposal to further develop modern, easily understood and user-friendly forms.
The proposal to further develop modern, easily understood and user friendly forms is welcomed.
Q7C.2 In particular, consultees are invited to identify any forms where it is considered that improvements could be made and indicate the nature of any difficulties experienced or improvements proposed.
Many respondents believe that all forms in use which have not already been revised could be streamlined and improved.
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