DMBM671130 - Summary warrant: Actions after an earnings arrestment schedule has been lodged

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Action the employer must take

On receipt of the earnings arrestment schedule (form 30) from the sheriff officer the defender’s employer must make deductions from the defender’s NET earnings on every pay day starting with the first pay day occurring after seven days of the lodging of the arrestment.Where any pay day occurs within this seven day period the employer is entitled but not required to begin deducting. The employer must make the deductions in accordance with the current table as laid down by Schedule 2 of the Debtors (Scotland) Act 1987 and send the sum deducted to you as soon as possible.With the introduction of the Bankruptcy and Diligence etc. (Scotland) Act 2007 (BaD Act) it is compulsory for the employer to tell us<ul><li class="filledcircle">how the employee is paid (whether weekly, monthly or otherwise)</li><li class="filledcircle">the date of employee’s next pay day following receipt of the earnings arrestment </li><li class="filledcircle">the sum deducted on that pay day and the net earnings from which it is deducted</li><li class="filledcircle">if the employee leaves their employment and</li><li class="filledcircle">the name and address of the new employer if known. </li></ul><h2>Action the debt pursuit office must take</h2>Issue SW250 letter to the employer to establish<ul><li class="filledcircle">how the employee is paid (whether weekly, monthly or otherwise)</li><li class="filledcircle">the date of the employee’s next pay day following receipt of the earnings arrestment and</li><li class="filledcircle">the sum deducted on that pay day and the net earnings from which it is deducted</li></ul>The BaD Act makes it mandatory for a creditor to advise the employer of the balance owed and dates and amounts of payments made by the later of<ul><li class="dash">6 April following service of the schedule of arrestment</li><li class="dash">6 months after service of the schedule</li></ul>and then every 6 April thereafter.Maintain a strict B/F to ensure that <ul><li class="dash">the employer complies with the arrestment and</li><li class="dash">the SW300 letter is issued to comply with the dates listed above.</li></ul>Note: Any failure to comply with an earnings arrestment must be dealt with as a priority at all stages. This is because if more than one year has passed since the date on which any deduction/payment should have been made then no claim can be made against the employer for recovery of the monies due (Para 69(4) of the Debtors (Scotland) Act 1987 refers).<h2>Variation in the deduction rate</h2>The Statutory Deductions Tables (as laid down by Schedule 2 of the Debtors (Scotland) Act 1987) may from time to time be varied by order of the Lord Advocate. When they are, Debt Management Edinburgh Group Office will send you a copy of the Statutory Instrument detailing the new deductions required.Whenever these Tables are amended you must send a copy of the new Statutory Deductions Tables to the employer together with a (court) form 31 (obtainable from the court). If you do not follow this procedure, the employer is not required to vary the amount being deducted and so cannot be held liable for failure to do so.You should<ul><li class="filledcircle">obtain and hold a supply of the (court) forms 31 from the court so that these will be available to you for immediate use on receipt of an amendment to the Statutory Deductions Table</li></ul>and also<ul><li class="filledcircle">make a prominent entry of “Earnings arrestment” in red ink in the notes column of the Book 51 and/or your papers so that such cases can be readily identified whenever you need to issue an amended Statutory Deductions Table to the employer.</li></ul><h2>Advising the employer when the debt is cleared</h2>As soon as the debt covered by the earnings arrestment is paid or otherwise cleared, (by discharge for example), you must notify the employer in writing. If you do not do so the Department will be liable to repay the defender any excess deductions made by the employer plus interest on that sum. In addition to this the defender may apply to the sheriff for an order requiring the Department to pay him twice the amount of the excess.You should ensure that any case with an earnings arrestment in force is kept under strict review so that the employer is notified as soon as the total sum covered by the earnings arrestment is cleared.