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ENFORCEMENT OF CIVIL OBLIGATIONS IN SCOTLAND: ANALYSIS OF CONSULTATION RESPONSES
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?
6.1 There are two strong but opposing camps on this issue. There is substantial support for the addition of a charge for payment to the summary warrant process particularly, but not solely, from those with vested interests either in supporting debtors or in serving charges for payment.
6.2 Those in favour regard serving a charge for payment prior to diligence as being equitable and giving continuity across all types of enforcement. The point made at earlier questions that despite letters being sent, debtors are often unaware of the existence of summary warrants, is repeated here by several respondents. It is argued by those in support of the charge for payment that a major benefit for the debtor is that it brings home to the debtor the seriousness of the position and allows for the debtor to resolve their ability and/or to seek advice and assistance. Enforcement agency organisations propose that, given the above arguments, the charge for payment will only be effective if delivered by Sheriff Officers.
6.3 Those who oppose the proposal, in the main local authorities, do so on the grounds that the debtor will have received several warnings prior to the granting of the summary warrant and that the option of instalment payments for Council tax has already been available to the debtor. The proposal at (a) is seen as allowing for further delay and obstruction on the part of debtors. Finally, local authorities objected on the grounds of the additional expense incurred by serving a charge.
6.4 The option of service of a notice in standard terms upon which it is competent to apply for a time to pay order is stated to be the current procedure adopted by many local authorities, who would have no difficulty in seeing it formalised.
6.5 However, those in favour of the charge of payment argue that the charge of payment is an essential procedure which is in addition to, and not an alternative to, service of a notice.
6.6 Two respondents comment that current summary warrant procedure may be subject to challenge under the Human Rights Act 1998 on the grounds that it breaches the individual's right to a fair hearing.
6.7 There is general agreement to Q6.2 from those who opt for option (b), with the caveat that any information given should be simple, straightforward, and concise. Some respondents who opted for option (a) recognised the importance of advice and information if option (b) were to be implemented.
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