1 Debt Arrangement Scheme (DAS) Business DAS Guidance for Payments Distributors Relevant Legislation The Scottish Parliament approved the Debt Arrangement Scheme (DAS) by passing the Debt Arrangement and Attachment (Scotland) Act 2002 (the 2002 Act). The Debt Arrangement Scheme (Scotland) Regulations 2011 and the Debt Arrangement Scheme (Interest, Fees, Penalties and other Changes)(Scotland) Regulations 2011 (the 2011 regulations), which both come into force from 1 July 2011, are the relevant legislation that support the provisions in the 2002 Act. The Debt Arrangement Scheme (Scotland) Regulations 2011 were amended by the Debt Arrangement Scheme (Scotland) Amendment Regulations 2013 and the Debt Arrangement Scheme (Scotland) Amendment Regulations Any approved programmes under these regulations will be administered under the 2011 regulations as amended by the 2014 regulations. More information on DAS and all related legislation and publications are available on the DAS website at: PLEASE NOTE - This guidance does not itself have the force of law. Interpretation of the law is a matter for the courts, rather than the Scottish Government.
2 Foreword Most people want to pay the debts that they owe, but some can only do so if they are given more time. The Scottish Government introduced DAS in 2004, to improve the options for people in debt. Unlike voluntary repayment plans, DAS is a statutory scheme and has the force of law, therefore debtors and creditors must comply with the rules set out in legislation. The 2014 amended Regulations came into effect on 11 December 2014 and make way for legal persons and other entities to apply for DAS, to be known as Business DAS. Some of the existing provisions, including the intimation process, were revoked on 1 April 2015 and replaced by the Moratorium on Diligence, as set out in Sections 4A to 4D of the Bankruptcy (Scotland) Act 185, as amended [ the 1985 Act ]. The key changes are summarised below. Debtors are defined as being; an individual, a legal person, a trust; or an unincorporated body of persons. A legal person is defined as; a partnership, a limited partnership or a corporate body (other than a company registered under the Companies Act 2006). Business DAS will be a clerical process only (unless otherwise advised). All correspondence and statutory forms must be by sent by postal service or . Debtors do not have to apply to the Scottish courts in order to use DAS. Debtors who meet the eligibility criteria must have surplus income, and must want to pay their debts. Debtors can apply for a debt payment programme (DPP) through DAS to help them pay their creditors what they owe, and they will be protected from enforcement action by those creditor provided that the DPP remains in force. The DPP makes a pro-rata offer of payment to creditors. Creditors will receive more than 90% of the debt they are due when the DPP is completed. There are 5 main parties involved in DAS: the debtor, the creditor, the continuing money adviser, the payments distributor, and the DAS Administrator (the Accountant in Bankruptcy). For Business DAS, the continuing money adviser must be an individual qualified to act as an Insolvency Practitioner (IP). Consequently this guidance makes reference to IP in relation to their role as the continuing money adviser. The DAS Administrator approves, rejects, varies or revokes the DPPs, administers DPPs, supervises DAS, and can approve money advisers and payments distributors. In this guidance, the Scottish Government states its views on what DAS is, and how the laws set out in the 2002 Act and 2011 Regulations, as amended by the 2014 Regulations, should be applied. It is intended to be a helpful guide that money advisers can use to provide advice to their clients on DAS and to assist the money adviser to submit an application for approval, variation or revocation of a DPP under DAS.
3 Key changes: Effective from 11 December 2014 Allows for legal persons and other entities to apply for DAS, to be known as Business DAS, update of DAS register allowing searches for business DAS cases, business DAS Money advisers (MA) must be qualified Insolvency Practitioners (IP), a declaration of viability must be completed for a business DAS proposal, all debts must be included in a DPP, and all assets must be declared, IP s in a business DAS must review viability every 12 months and must apply for revocation where no longer viable, all business DAS cases must be completed within 5 years, no payment breaks allowed, no offer of composition may be made in business DAS, amends the criteria by which a MA may be judged fit or otherwise to be approved as a money adviser, a debtor can only make one moratorium application or written request for a moratorium within a 12 month period, an MA who intend to resign must assist a debtor in finding a replacement MA before the MA resigns, where a debtor is a charity application must be intimated to the Office of the Scottish Charity Regulator (OSCR), and business DAS proposal must receive relevant consents from interested persons: - each partner in a partnership, each general or limited partner in a limited partnership, the majority of trustees in a trust and, a person authorised to act on behalf of an unincorporated body.
4 Effective from 1 April 2015 the application of the Common Financial Statement (CFS) to assess a debtors income and expenditure (for Individual DAS only), the provision to allow contributions from debtors solely on benefits (for Individual DAS only), the use of Form 1 application for approval of a DPP: Individuals. This includes a statement of income and expenditure in the form of the Common Financial Tool (CFT) - for Individual DAS only. a debtor can only make one moratorium application or written request for a moratorium within a 12 month period. for information relating to changes that affect Individual DAS please see the Individual DAS guidance available on the DAS website. Forms Individual DAS Business DAS Form 1 application for approval of a DPP: Individuals Form 1B application for approval of a DPP: Legal persons and other entities Form 2 notification to creditor of approval of a DPP Form 2B notification to creditor of approval of a DPP: Legal persons and other entities Form 3 payment Instruction to employer Form 4B application for variation of a DPP: Legal persons and other entities Form 4 application for a variation of a DPP: Individuals Form 5B application for revocation of a DPP: Legal persons and other entities Form 5 application for revocation of a DPP: Individuals Form 7 declaration of viability
5 Business Debt Arrangement Scheme Guidance for Payment Distributors Contents 1 Introduction The Main Parties of the Debt Arrangement Scheme Continuing Money Adviser (IP) The debtor The creditor The DAS Administrator Payments distributors 2 Fees applied to a DPP Fees applied to DPPs approved from 1 July 2011 Fees applied to DPPs in effect prior to 1 July 2011 Fees applied to DPPs where there is a replacement payments distributor 3 Approval of a Payments Distributor Ceasing to act as a payments distributor Revocation of approval of a payments distributor Effect of Ceasing to act or Revocation of approval for a PD 4 Setting up a DPP 5 Administering a DPP General Missed payments Under, Over or Lump sum payments Missing Creditor s Banking or Payment Details 6 Variation of a DPP 7 Revocation of a DPP 8 Completion of a DPP 9 Reviews 10 Appeals 11 The DAS Register Appendix 1 Fair and Reasonable Appendix 2 Standard conditions Appendix 3 Discretionary conditions Appendix 4 Non-essential assets
6 All references to regulations in this guidance document refer to the Debt Arrangement Scheme (Scotland) Regulations 2011 as amended by the Debt Arrangement Scheme (Scotland) Amendment Regulations 2014 unless otherwise specified. 1. Introduction 1.1 The business Debt Arrangement Scheme (DAS) is a government-run debt management tool which allows debtors to repay their debts through a debt payment programme (DPP). The DPP allows debtors to pay their debts over a maximum period of five years and offers protection from enforcement action by creditors in respect of debts which are being paid as part of the DPP. If a debtor is applying for business DAS then the IP must sign a declaration of viability declaring that the debtor is able to pay his debts within 5 years. Regulation reference Regulation 22A 1.2 DAS is different from bankruptcy and protected trust deeds which are debt relief measures. On average, only a small proportion of the debt is repaid to unsecured creditors from bankruptcy or protected trust deeds. Debtors in a DPP will have paid their creditors at least 90% of what they owe when the DPP is completed. 1.3 Business DAS only applies to debtors who have a place of business in Scotland or operate a business formed under Scots Law. Creditors can be based in Scotland, elsewhere in the UK or abroad, but they must still comply with the DAS legislation if the debtor s DPP is approved. For example, the creditor must not try to persuade the debtor to withdraw from the DPP, or to make additional payments in respect of a debt included in the programme. 1.4 Debtors must obtain advice from an Insolvency Practitioner (IP) acting as a money adviser. The DPP can last up to but not exceeding 5 years, must include two or more debts and the debtor must either still be trading or otherwise operating. 1.5 The IP must include a declaration of viability which confirms the persons eligibility to enter business DAS, along with a mandate authorising them to act. The declaration of viability must be sent to all creditors for consent. Regulation 8A Regulation In relation to a partnership, every partner must consent to the application; and the application may be combined with an application by; any of the partners as an individual;. In relation to a limited partnership, every general partner must consent to the application; In relation to a trust, the majority of trustees must consent to the application; In relation to a corporate body, a person authorised to act on Regulation 22A
7 behalf of the body must consent to the application; An IP must make a declaration that consent has been given as required; Debtors must arrange a suitable payment method. 1.6 Up to 10% of the monies paid by the debtor in their DPP are used to cover the costs associated with the DPP. These costs include: a fee of 2% for the consideration of an application for approval of a DPP, to be paid to the DAS Administrator (Regulation 5). an administration fee up to 8% of the total debt, to be paid to the payments distributor selected to receive and distribute the debtor s payments to the creditors (Regulation 17). These fees will only be charged when the debtor has paid the monies to the payments distributor and are deducted prior to any monies being paid to the creditors. 1.7 From 1 April 2015 debtors will no longer be able to apply for a DAS intimation. Instead debtors will be able to apply for a moratorium which covers DAS, trust deeds and sequestration. The moratorium period will be six weeks from the date the moratorium is registered. An application for a moratorium will be made through the Register of Insolvencies (RoI). When an application for moratorium is submitted, it will automatically be uploaded to the RoI and the DAS Register, where it will remain for six weeks. If a DPP application is made during this time, the moratorium period will be extended until the outcome of the application has been determined. If a debtor has not previously applied for a moratorium they will not have protection from any creditor enforcement until their application has been approved by the DAS Administrator. Regulation 20(2) Regulation 4(1) Debt Arrangement Scheme (Interest, Fees, Penalties and other Charges)(Scotland) Regulations 2011, as amended During the moratorium period, a creditor cannot enforce any diligence (specific legal action) against the debtor. Subsequently, should a debtor go on to make an application for a DPP (within the 6 week moratorium period) all interest, fees, penalties and other charges on debts included in the programme are frozen from the date of application. If the DPP application is approved all interest, fees and charges will be written off when the Programme is completed. If the DPP application is rejected, or the Programme is approved but not completed then all interest, fees and charges can be added back on and the debts can be enforced by creditors. All debts due must be included in a DPP, except those defined as a
8 continuing liability. Only one moratorium is permitted within any 12 month period, unless a debtor has had a joint DPP revoked. 2. The Main Parties of the Debt Arrangement Scheme Regulation IP acting as a Continuing Money Adviser The IP must provide advice to the debtor and, if appropriate, prepare and submit on behalf of the debtor an application (Form 1B) for approval of a DPP (Regulation 20(2). They must also obtain a signed mandate from the debtor authorising then to act on their behalf. After they submit the application, the IP will take on the responsibility for carrying out the administration of the DPP The functions and duties of an IP are: to consider and discuss with the debtor the options for dealing with their debts and the best course of action; to liaise with creditors on behalf of a debtor; to advise the debtor about responsible budgeting; to submit, if required, a moratorium application, or written request for a moratorium to The Accountant in Bankruptcy, to assist the debtor with and advise on an application for approval, variation or revocation of a DPP; or an application for the review of a determination; to provide a declaration of viability to all creditors when requesting consent for an application for approval of a DPP; to prepare and submit an application to vary or revoke a DPP on behalf of a debtor, if required; to provide lay representation in court, if suitably trained and if they accept instruction from the debtor, and to confirm a suitable payment method with the debtor; to undertake an annual review including the provision of a further statement of viability to all creditors The IP should check the details of all debts included in the DPP with each creditor prior to the submission of the DPP to DAS Administrator Business DAS is a clerical process, therefore all correspondence between you and the DAS Administrator must be sent by postal service or via . The DASH system will continue to be used for individual debtors only, no information will be held on DASH relating to business DAS, However, further DASH enhancements are planned to incorporate business DAS. 2.2 The debtor
9 2.2.1 The debtor is someone who owes or is due to pay money to an individual or a company. For the purposes of business DAS, there is no maximum or minimum amount of debt the debtor must owe to allow access to the scheme, however there must be two or more debts. The debtor must have disposable income to pay these debts and be able to pay these within a five year period. 2.3 The creditor The creditor is an individual or a company owed money by a debtor. The creditor is due payment of the debt, by the debtor, under the terms and conditions agreed when the credit was provided. A collection agency working on behalf of a creditor is not the owner of the debt. (In some cases, creditors sell these debts to collection agencies. This makes the collection agency the owner of the debt and a party to the DPP.) 2.4 The DAS Administrator The DAS Administrator is the Accountant in Bankruptcy, appointed by Scottish Ministers to administer and supervise the functions under DAS The DAS Administrator: approves, suspends or revokes the approval of money advisers approves or rejects applications for a DPP approves or rejects applications to vary a DPP approves or rejects applications to revoke a DPP maintains the DAS register approves (Reg 14) and revokes payments distributors (Reg 15). Regulation The DAS Administrator can be contacted at: DAS Administrator Accountant in Bankruptcy phone: Pennyburn Road fax: Kilwinning Ayrshire Scotland KA13 6SA 2.5 Payments distributors Approved payments distributors collect money from debtors and distribute (regulation 16(1)(b)) it pro-rata to creditors in accordance with an approved DPP. Regulation 14
10 The payments distributor will provide the DAS Administrator with any information required under the Regulations or any document reasonably requested by the DAS Administrator. The payments distributor will have regard to guidance issued by the DAS Administrator when carrying out a function of a distributor (regulation 16(3)). All communication between the DAS Administrator, the IP and the payments distributors will be via postal service or . Regulation 5 Regulation Fees applied to a DPP 3.1 Fees applied to DPPs approved from 1 July 2011 The DAS legislation contains the provision that the payments distributor will collect the regular payments made by the debtor when their DPP is approved. The payments distributors are individuals or organisations who have tendered to, and been approved by, the DAS Administrator to provide the payments distribution process (regulation 14). The collected payments are then distributed to all the creditors on a pro rata basis, depending on the amount of debt due to each creditor in the DPP. Up to 10% of the debtor s payments are used to cover the costs associated with the DPP. Therefore, creditors will receive at least 90% (depending on the payments distributor s agreed contract rate) of the debt when the DPP is completed. Regulation 49 (2) There is a fee of 2% for the consideration of an application for approval of a DPP which is paid to the DAS Administrator (regulation 5). There is also an administration fee of up to 8% of the sum due to a creditor (regulation 17(2)), to be paid to the payments distributor. The payments distributor rate will vary depending on the rate included in their contract. These fees will only be applied when the debtor has paid their regular payment to the payments distributor and are deducted prior to any money being paid to the creditors. Creditors will always receive a sum minus the applied fees. The debtor does not pay anything additional to cover these fees. The payments distributor must not make any additional charge of any kind to the debtor for payments distribution (regulation 17(1)(a)). However, where a debtor has an IP, the debtor may pay an additional fee direct to the IP to cover the continuing service provided along as
11 the debtor agrees to pay that fee. 3.2 Fees applied to DPPs in effect prior to 1 July 2011 Where the payments distributor is approved by the DAS Administrator immediately before the 1 st July 2011, they will continue to act as a payments distributor in respect of any DPP in effect at that date which they were allocated the payments distributor (regulation 49(2)). Regulation 16 Up to 10% of the debtor s payments is used to cover the costs associated with the DPP. Creditors will receive at least 90% of the debt when the DPP is completed. The maximum administration fee payable under regulation 17(2), to be paid to the payments distributor, is 10% of the sum due to be paid to a creditor in a distribution (regulation 50(2)(b)). This fee will fixed for the term of the DPP, unless the payments distributor ceases to act as a payments distributor (regulation 49(2)(a)) or chooses to reduce their fee. The payments distributor cannot increase the fee payable. There is no fee payable for the consideration of an application for approval of a DPP (regulation 50(2)(a)). The payments distributor must not make any additional charge of any kind to the debtor for payments distribution (regulation 49(2)(b)). However, where a debtor has a IP, the debtor may pay an additional fee direct to the IP to cover the continuing service provided. 3.3 Fees applied to DPPs where there is a replacement payments distributor Where the approved payments distributor ceases to act or their approval is revoked (see section 4.2 and 4.3), the DAS Administrator will specify a replacement payments distributor who will take over responsibility to act for the DPPs (regulation 16). These transferred DPPs will potentially include some that were approved prior to the 1 st July Regulation 14 Where the transferred DPP was approved before the 1 st July 2011, the replacement payments distributor can apply a fee equal to the rate that they charged as an approved payments distributor prior to 1 st July 2011 for that DPP. The replacement payments distributor can choose to charge a lower rate equal to their agreed contract rate if they wish. However, they cannot charge a greater rate. Where the replacement payments distributor was not approved prior to the 1 st July 2011, they must charge their contract rate on all the transferred DPPs even if the DPP was approved prior to 1 st July 2011.
12 For all transferred DPPs that were approved on or after 1 st July 2011, the replacement payments distributor can only charge their agreed contract rate for the administration of the DPP (regulation 17). They must also deduct the 2% administration fee (regulation 5) from the debtor s regular payments prior to sending the pro rata payments to the creditors. 4. Payments Distributors for a DPP 4.1 Approval of a payments distributor The DAS Administrator will invite tenders from persons or bodies who would like to become a DAS approved payments distributor. It will be by a fair, open and transparent process(regulation 14(2)). It will establish a panel of approved payments distributors who will distribute, on behalf of a debtor with an approved DPP, a regular payment to the debtor s creditors. Regulation 13 Where an applicant is appointed following the tender process, the DAS Administer may make that appointment subject to any reasonable condition (regulation 14(5)). The DAS Administer can only approve an applicant to be an approved payment distributor where they are a fit and proper person or body to be a payments distributor (regulation 14(3)(a)). To be a fit and proper person or body (regulation 14(4)) a payments distributor must satisfy the following criteria: Hold a current licence under the Consumer Credit Act 1974; Be registered under the Data Protection Act 1998 as a data processor; Make and maintain arrangements to ensure financial security of sums received from debtors for disbursement to creditors; Make and maintain appropriate arrangements to accept and disburse payments using all methods approved (regulation 31(1)); Make and maintain appropriate arrangements to ensure compliance with Financial Services Authority (FCA) Codes of Practice relative to debt management and collection guidance; Make and maintain appropriate arrangements for the issue of required reports; and Provide an information technology system to transmit reports to debtors, creditors, money advisers, DAS Administrator by the preferred medium (e.g. text and or data files); When approved, the payments distributor s name and address will be specified on a debtor s application for approval of a DPP (regulation 13(1)). The DAS Administrator will allocate an approved payments distributor. Where an IP completed the application on behalf of the
13 debtor, and they are also an approved payments distributor. The DAS Administrator will select them to act as the payments distributor, if the DPP is approved. The payments distributor must carry out the functions and duties of a payments distributor for a DPP, if the DPP is approved and where the DAS Administrator consents to that appointment. Regulation 16 Where the DAS Administrator does not consent to an appointment of a payments distributor, for example due to a conflict of interest between the debtor and the payments distributor, the DAS Administrator must arrange for another payments distributor to act in a particular DPP (regulation 13(2)). It is possible that an approved payments distributor could also be a creditor or an IP in a DPP. Whilst it is acceptable for the approved payments distributor to also carry out the IP s functions, if the payments distributor is a creditor in a DPP they should withdraw their appointment and notify the DAS Administrator who will allocate another payments distributor. An approved payments distributor must inform the DAS Administrator as soon as they are aware of any changes in their organisation that may affect their approval as a payments distributor. 4.2 Ceasing to act as a payments distributor An approved payments distributor can choose at any time to cease to act as a payments distributor for the purposes of DAS. The payments distributor should give the DAS Administrator at least 30 days notice of their intention to cease to act. Where the payments distributor ceases to act the DAS Administrator will specify a replacement payments distributor who will take over responsibility to act for the that payment distributor s DPPs (regulation 16). The DAS Administrator will also specify the period within which the transfer must be completed. This will normally be within 30 days to allow the debtor to maintain their regular payments. Regulation 14(5) Regulation 16 The payments distributor who ceases to act must transfer, within the specified period, the DPPs for which they are responsible to the specified replacement payments distributor (regulation 16(2)). 4.3 Revocation of approval of a payments distributor The DAS Administrator can revoke the approval (regulation 15) of a payments distributor where: the payments distributor fails without good reason to comply with a condition attached to the approval; or
14 the DAS Administrator is satisfied that the distributor is no longer a fit or proper person to be an distributor; or in the opinion of the DAS Administrator the distributor: has failed without good cause to carry out a function of a distributor under the Act or under the Regulations; and continues to fail to carry out that function, after 2 weeks from the date of written notice to the distributor of that failure; or in the opinion of the DAS Administrator the distributor fails to comply without good reason with any condition to which the approval is subject under regulation 14(5) Where the DAS Administrator intends to revoke the approval of a payments distributor, the DAS Administrator will issue a letter to the payments distributor giving them at least 30 days notice. Where approval is revoked the DAS Administrator will specify a replacement payments distributor who will take over responsibility to act for the revoked payment distributor s DPPs (regulation 16). The DAS Administrator will also specify the period within which the transfer must be completed. This will normally be within 30 days to allow the debtor to maintain their regular payments. However, where the transfer will impact a very large number of DPPs, the DAS Administrator may allow the transfer to be done in batches over a longer period. On an approval being revoked, the payments distributor must transfer, within the specified period, the DPPs for which they are responsible to the specified replacement payments distributor (regulation 16(2)). 4.4 Effect of Ceasing to act or Revocation of approval for a payments distributor Whether the approved payments distributor ceases to act or their approval is revoked the same process should be followed. The payments distributor should ensure that all records are up to date, including recording any missed payments and updating the minor s creditor banking and payment details. The payments distributor should send a detailed list of all the DPPs, incorporating the DAS reference number, debtor s details, payment method, amount etc., to the DAS Administrator and the replacement payments distributor. Where the payments distributor is holding any funds on behalf of a debtor this should be transferred to the replacement payments distributor along with the list. The payments distributor should write to the debtors explaining the transfer to the replacement payments distributor. The debtor should also be advised to stop paying their regular payment until they
15 receive a notice from the replacement payments distributor. If the payments distributor does receive a payment from a debtor within 5 days of their letter being issued to the debtor they should forward that payment to the replacement payments distributor. If they receive a payment from the debtor after 5 days of their letter being issued the payment should be returned to the debtor with a reminder that the payment should be sent to the replacement payments distributor. Regulation 29 (4)(v) The DAS Administrator will place a notice on the DAS website informing all parties of the impending transfer. The replacement payments distributor will contact the debtors within 5 days of receipt of the list. The payments distributor should issue revised paying instructions to the debtor, for example including standing order or direct debit mandates and issuing a revised instruction to an employer (if applicable) using form 3, to allow the debtor to continue to pay their regular payments. The replacement payments distributor will use the information given to them by The DAS Administrator to contact the creditors in the DPPs to arrange distribution of the debtors payments. Regulation 31 Regulation 28 (2)(b) The replacement distributor can charge their administration fee as specified in the regulations, see section 3.3 for details. 5. Setting up a DPP 5.1 When the DAS Administrator makes a decision to approve a DPP the DAS register will be updated to show an approved programme. A DPP will be approved from midnight on the day immediately preceding the date on which the notice was entered on the DAS Register. (For example: A DPP approved on 1 February 2011 will be approved from midnight on 31 January 2011). 5.2 Immediately after a DPP is approved, the DAS Administrator or the IP will notify the payments distributor (regulation 29(4)(v)) through postal service or . This notification will include: the DAS case reference number IP s details the name of the nominated person; the nominated person s contact details. details of how they wish to make payment i.e. payment mandate to an employer, direct debit, standing order, cheque, postal order, smart card, swipe card, paypoint, e-banking, smart key or other type of payment card or key; or any other method of payment as directed by the DAS Administrator (regulation 31); the contact details for the debtor s employer where the debtor Regulation 31 Regulation 27 (2)(a)
16 has agreed to pay using this method or where it has been imposed on the debtor under a discretionary condition (regulation 28(2)(b)). 5.3 The payments distributor will also receive information about the DPP from the DAS Administrator. This will include: details of each creditor; the contact details for each creditor; the total amount to be paid to each creditor; the instalment to be paid to each creditor; the frequency of instalments; and the length of the programme; 5.4 The payments distributor will accept instructions from the DAS Administrator in respect of an approved DPP, unless the payments distributor believes there is a conflict of interest with the debtor. 5.5 The payments distributor may have to obtain a signed mandate from the debtor, giving them instructions to operate on behalf of the debtor. Regulation The payments distributor will as soon as possible and in any event within 10 working days contact the debtor to arrange receipt of their regular payments. This may include sending a standing order or a direct debit mandate to the debtor depending on their agreed method of payment (regulation 31). The payments distributor will also have to contact all creditors in the DPP within 10 working days to get banking and paying instructions. 5.7 The payments distributor must have systems in place to ensure the debtor makes the first payment to their creditors under the DPP within 42 days (regulation 27(2)(a)) of their programme being approved. 5.8 If the payments distributor is unable to make the payment arrangements in that period, the payments distributor MUST alert the DAS Administrator and the IP and give reasons for the delay and, where possible, a note of the agreed start date. Regulation 32 (5) Regulation The payments distributor will comply with any reasonable directions given to them about collection and distribution of funds by or on behalf of the debtor in a DPP. If unable to do so, the payments distributor must advise the DAS Administrator and the IP within 5 working days Once payment arrangements have been agreed the payments distributor should update the agreed start payment date.
17 6. Administering payments distribution in a DPP 6.1 General The payments distributor must receive the instalments as agreed in their DPP from the debtor (or from their employer if there is a payment mandate). Depending on their agreed method of payment (regulation 31), this can be by standing order or direct debit from their bank account or by payment mandate from the debtor s employers (if applicable). The payments distributor will send a receipt to the debtor on request. Where the debtor s agreed method of payment (regulation 31) is payment directly from their employer, the payments distributor should receive the regular payments as long as the debtor remains in their employment and has not agreed an alternative method of payment with the payments distributor. If the employer fails without good cause to make a payment to the payments distributor following an instruction under a payment mandate, the employer will be liable to pay the amount that should have been paid (regulation 32(5)). The payments distributor should contact the debtor s employer for the payment and should inform the DAS Administrator or the IP that the employer did not make the payment. The payments distributor will distribute the payments to creditors pro rata as agreed in the payment programme (regulation 16(1)(b)). The payments distributor will deduct the 2% application fee (regulation 5) and their contracted administration fee (regulation 17(2)) prior to any monies being paid to the creditors. Regulation 42 (2) The payments distributor must send the 2%, for the consideration of an application for approval of a DPP, fee to the DAS Administrator (regulation 16(1)(e)) at the same time as they make the distribution to the creditors. At no time should the payments distributor hold onto this money. The payments distributor will send a monthly remittance notice to the DAS Administrator of all payments made within the month, including DAS case reference number, debtor s name and the application fee amount. The payments distributor will provide payment and distribution reports to the DAS Administrator, an IP and to creditors (regulation 16(1)(c)). The requested report will detail: the DAS case reference number; the amount and dates of payments; the total amount paid by the debtor; the total amount paid to the creditors in the DPP; total amount deducted in fees; any funds held by the payments distributor on behalf of the
18 debtor; and any amount that the debtor is in arrears (if applicable). The payments distributor will send such a report within 5 working days of a request by the DAS Administrator or an IP. If the payments distributor is unable to produce that report within that period they will inform the person requesting the information giving reasons for the delay. 6.2 Missed payments If the debtor fails to make their agreed instalment, the payments distributor will not be able to make any payment to the creditors. The payment distributor must inform the DAS Administrator and the creditors that no payment was received. If a debtor fails to make the equivalent of two monthly payments with the third payment due, the payment distributor must alert the DAS Administrator immediately. The DAS Administrator will then contact the debtor, the IP and all creditors in the programme if intending to revoke the DPP (regulation 42(2)). All parties to the DPP will have up to 4 weeks to provide a statement to the DAS Administrator on whether the DPP should be revoked. Should the programme be revoked the IP or the DAS Administrator will notify the payments distributor. Regulation 28 (2)(a) 6.3 Under, Over or Lump sum payments If the debtor underpays and there is no previous surplus to top up the payments the payments distributor can either withhold the payment until the next payment is due or make a pro rata underpayment to all creditors. It will never be an option to pay only some creditors. The payments distributor will have to inform the parties in the DPP that the debtor has underpaid their agreed payments. All interest accrued on any money, held on behalf of the debtor, should be used to pay the debtor s creditors. If the debtor regularly underpays, their DPP may have to be varied or they may be at risk of their DPP being revoked when the underpayments add up to the equivalent of two monthly payments with the next payment due. If the debtor overpays, the payments distributor should either make a pro rata overpayment to all the creditors in the DPP. Alternatively, the payments distributor can make the agreed instalment to the creditors and hold the extra money. This extra money (if sufficient) can be used, if the debtor underpays at some future point, to top up the underpayment. All interest accrued on the extra money being held by the payments distributor on behalf of the debtor should be added to the debtor s account to be used to pay creditors.
19 If the debtor continually overpays, the payments distributor should inform the DAS Administrator or the IP as soon as the excess balance held by the payments distributor exceeds the amount equal to one payment. This excess balance should be paid pro rata to the creditors as soon as possible. All interest accrued on the extra money being held by the payments distributor on behalf of the debtor should be added to the debtor s account to be used to pay creditors. Under the discretionary conditions (regulation 28(2)(a)), the debtor may have to realise and distribute amongst creditors the value of an asset. Therefore, the payments distributor may receive a lump sum payment. Ad hoc lump sum payments from debtors should be distributed to all the creditors in the DPP on a pro rata basis within 5 days of receipt by the payments distributor. All interest accrued on the lump sum payments being held should be added to the debtor s account to be used to pay creditors. The payments distributor must inform the DAS Administrator within 5 working days of a missed payment, underpayment, or overpayment in a DPP with the total amount of arrears or overpayment. If any payment is returned either by a creditor or by the agent making a payment (for example, a bank) you advise both the DAS Administrator and the IP and await instruction from the DAS Administrator or the IP as to what to do with the returned money. Regulation 36 The payments distributor will amend their records within 5 working days of receipt of a notice from the DAS Administrator, the IP or creditor in respect of any change to the: IP s, contact details; the debtor s payment or banking details; and any creditor s contact details. 6.4 Missing Creditor s Banking or Payment instructions Where the payments distributor is unable to make a distribution to a creditor, either due to the lack of a creditor s account details or where the payment is returned, the payments distributor MUST notify the DAS Administrator. The payments distributor should hold the pro rata payment due to that creditor. The DAS Administrator or the IP will contact the creditor to clarify why they have not provided banking or payment information to allow the payments distributor to fulfil their functions. If the creditor continues to not respond or provide payment information, the IP on behalf of the debtor, will apply for a variation of the DPP to remove that creditor. This will allow the payments distributor to distribute the debtor s on-going payments and any balance pro-rata between the other creditors. The payments
20 distributor must receive notification that the variation has been approved before making the revised distribution. On no account should the payments distributor retain any money, or interest on any money belonging to the debtor or creditors. Regulation Variation of a DPP 7.1 Changes to the debtor s name, contact details, method of payment do not require a variation and will be passed to or from the payments distributor via postal service or . Similarly, if a creditor sells their debt to another creditor they should inform the payments distributor, the DAS Administrator, the IP and the debtor. The creditor details should be updated and the payments distributor should contact the new creditor regarding payment instructions. 7.2 The DAS Administrator will send the payments distributor a variation notice if the debtor, an IP on behalf of the debtor or a creditor has applied to the DAS Administrator to vary a DPP (regulation 36(4)(b)). When a DPP variation is approved, the payments distributor will be advised of the changes in writing or (regulation 39). An application for variation made by an IP must include a declaration of viability. The DAS Administrator may propose a variation of a debt payment programme where a liability, or part of a liability, of the debtor is discharged by a creditor applying compensation between that debt, or part of that debt, and a liability owed by the creditor to the debtor. However, must have made a reasonable attempt to agree a variation between the debtor and creditor. (Regulation 36A(1)(2)). A variation cannot lengthen a DPP beyond 5 years. 7.3 The payments distributor will receive the following information: the total amount to be paid by the debtor; the amount to be paid to each creditor; the frequency of instalments; and the length of the proposed programme, the name and contact details of any new creditor. 7.4 The payments distributor will make payments in line with the varied DPP as soon as possible and in any event within 15 working days and if unable to do so will alert the DAS Administrator within that period giving reasons for the delay. 8. Revocation of a DPP Regulation 40 and 40A a DPP specify when The DAS Administrator must revoke a DPP.
21 8.1 Revocation on sequestration or protected trust deed The DAS Administrator must revoke a DPP where a debtor has applied and been awarded bankruptcy. Similarly, the DAS Administrator must revoke a DPP where a debtor has granted a trust deed which gain protected status (regulation 40) The DAS Administrator must revoke a DPP on the death of a debtor In such cases, the DAS Administrator will remove the debtor s details from the DAS register* and will notify you that the DPP is revoked. All payments agreed in the DPP will stop. You can apply any interest, fees and charges to the debt included in the bankruptcy or protected trust deed. (* The debtor s details will be recorded on the Register of Insolvencies, when they are bankrupt or in a protected trust deed.) 8.2 Application for revocation The DAS legislation allows the debtor, another creditor in the DPP, a nominated person on behalf of the debtor or an IP acting on behalf of the debtor to apply to the DAS Administrator to revoke the DPP (regulation 41) An application for revocation can be made by the debtor in writing, or on form 5B, by: you; another creditor; by a nominated person on behalf of the debtor, or the IP on behalf of the debtor The DPP may be revoked by the DAS administrator where: The business failed to satisfy a standard condition under regulation 27 or a discretionary condition under regulation 28. The business made a false statement in their application. The business failed to make the agreed instalment under the DPP and it is currently in arrears of an amount equal to the aggregate of payments due in a period of two months beginning after the last payment is made. The format of the business has changed. The business has been dissolved. An IP is unable to make a declaration of viability because he considers the debtor no longer meets the requirements. Regulation The payments distributor must inform the DAS Administrator and the IP when the debtor has failed to make payments when they become due. The payment distributor must also let the DAS
22 Administrator and IP know when the debtor has arrears of the equivalent of three missed payments. 8.4 When a DPP is revoked, the DAS Administrator or the IP will notify the payments distributor in writing (regulation 44(1)). 8.5 After receiving notification of the revocation of a DPP, the payments distributor MUST send a report to the IP. This report must state: the the amount and date of each instalment made by debtor; the amount and date and recipient of each instalment made to creditors; the total balance outstanding; and the total funds received from the debtor that you still hold. Regulation Any funds still held by the payments distributor should be returned to the debtor within 15 working days. If the payments distributor receives any payments made by, or on behalf of, the debtor they should return it back to the debtor within 5 working days of receipt. 8.7 On no account should the payments distributor retain any money belonging to the debtor or the creditors. 8.8 If the payments distributor is unable to return the money within the specified period they MUST inform the DAS Administrator within that period giving reasons for the delay. 9. Completion of a DPP 9.1 A DPP reaches completion at the end of the agreed period of the DPP. This will be when the debtor makes all the payments as agreed, or has made a lump sum payment equal to the sum of all outstanding payments. Completion of the DPP will be at the time specified when the DPP was first approved, or if it has been varied, at the most recent variation. 9.2 The debt in the DPP will have been paid in full, minus the fees paid to the DAS Administrator or payments distributor. 9.3 The payments distributor will within 5 working days of the last payment to the creditors in a DPP send notification (regulation 46(1)) to the DAS Administrator and the IP and issue written notification to the debtor and creditors confirming completion of the programme. Regulation 47C 9.4 When a DPP is completed, any funds still held by the payments distributor should be returned to the debtor within 15
23 working days. If the payments distributor receives any payments made by, or on behalf of, the debtor they should return it back to the debtor within 5 working days of receipt. On no account should the payments distributor retain any monies belonging to the debtor or the creditors. Regulation 19 If the payments distributor is unable to return the money within the specified period they MUST inform the DAS Administrator within that period giving reasons for the delay. 10. Reviews 10.1 Reviews can be submitted to the DAS Administrator. Reviews can be made by: a debtor a creditor in the DPP an IP acting on behalf of a debtor a creditor who is not in the DPP but who has applied for a variation 10.2 All review requests must be made, in writing, directly to the DAS Administrator within 14 days of the DAS Administrator s determination to approve, reject, vary or revoke the DPP The DAS Administrator will intimate the application in writing to: the debtor any creditor in the DPP the IP who made the application for the DPP each creditor taking part in the programme 10.4 The DAS Administrator must review the determination within 28 days of the application for review All parties listed under Section 12.3 will be notified of the review decision by the DAS Administrator with the addition of: the payment distributor where there is a payment under Regulation 32, an employer 11. Appeals 11.1 Appeals can be made on a point of law, to the sheriff. Appeals can be made by the same parties listed under Section 13.1: 11.2 All appeals to the sheriff must be made within 14 days of the DAS Administrator s review decision. Any appeal will be recorded on the DAS register.
24 11.3 The DAS Administrator will notify the payments distributor of any appeal. 12. The DAS Register 12.1 The DAS Administrator will maintain a free web-based register which will be accessible to everyone The DAS register will contain the following information: If a moratorium application has been granted; an application for a programme that has yet to be approved; an application that has been withdrawn; that a request to a creditor to consent to a DPP has been sent; a programme that is approved; that a notice of an approval or rejection to a DPP has been sent; an application for variation of an approved programme; a variation of an approved programme, and an appeal to the sheriff The DAS register will also include the debtor s details, where they have had a moratorium application granted, or are taking part in a programme, a record of their: name, including any former name(s) date of birth home address or addresses business address (if any), and the business address of any IP.
25 Appendix 1 The Fair and Reasonable Test (Regulation 25) In determining whether a DPP is fair and reasonable, the DAS Administrator must consider: the total amount of debt; the period over which a programme will operate; The value of any land owned by the debtor and any security over that land; the method, and frequency, of payments under a programme; an earlier proposed programme that was not approved; a matter specified in regulation 21(2) that would have prevented an application being made, where the matter no longer has that effect; the involvement of the debtor in a: - debt payment arrangement, including a debt payment programme under these Regulations; - time to pay direction under section 1 (time to pay directions) of the Debtors (Scotland) Act 1987, or time to pay order under section 5 (time to pay orders) of that Act; or - time order under section 129 (time orders) of the Consumer Credit Act 1974; the extent to which creditors have consented (deemed or otherwise) or objected to a programme; any comment made by the money adviser; an asset of a debtor that could be realised to pay debts to be included in a programme; any standard security placed over any interest in the land owned by the debtor; and any other factor considered appropriate.
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