Can Creditors Still Take Court Action While You Are On A Debt Management Plan?

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In Scotland that means a decree, then a charge for payment, then diligence against your wages, your bank account or your goods. Council tax skips the court action altogether.

The vocabulary matters, because most of what you will read online is English. Whether a plan stops a wage arrestment is the page that deals with the consequence most people fear.

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Why does a plan not stop court action?

Because it is a contract between you and each creditor rather than a statutory scheme. Nothing in Scots law attaches any consequence to one.

The structural answer

A debt management plan is an informal arrangement rather than a statutory scheme. No Act of Parliament creates it, nothing prescribes its form, and it binds nobody by force of law.

What is binding is your contract with the provider, not the plan itself. The creditors are not parties to it.

The freedom runs both ways

You can end a plan whenever you like, and StepChange’s client agreement says in the client’s own voice that creditors may continue collection activity including taking legal action, and that the charity cannot prevent it.

National Debtline’s Scottish guidance puts the same point as a warning: creditors may still take court action against you.

What the plan does instead

It organises one payment, splits it between creditors and gives you somebody to deal with them. None of that is protection, and none of it was ever meant to be.

It is not a criticism of the plan

It is a description of what an informal arrangement is. What a debt management plan is sets out what one does well.

What does court action look like in Scotland?

An action in the sheriff court, then a decree, then diligence. The words are different from the ones used in England and so is some of the process.

The Scottish vocabulary

There is no county court judgment here, and sheriff officers are not bailiffs. The Scottish Courts and Tribunals Service is the place to check what a court document actually is.

The charge for payment

On an ordinary court decree the position is settled. Section 90(1) of the Debtors (Scotland) Act 1987 makes a charge for payment, served and expired unpaid, a precondition of an earnings arrestment, and section 90(3) sets the period at 14 days in the United Kingdom.

Section 90 is where that sits, and what a charge for payment is covers the document itself.

And one question nobody should answer for you

On a summary warrant it is not settled. Schedule 8 to the Local Government Finance Act 1992 authorises an earnings arrestment directly and says nothing about a charge, while section 90(1) carries no summary warrant exception on its face.

Ask a money adviser or the sheriff clerk about your own paperwork. No website should tell you the answer either way.

Which creditors can move fastest?

Councils, because council tax is collected by summary warrant rather than by an ordinary court action.

What that means in practice

There is no hearing to attend and nothing to defend. The first thing many people see is a deduction from their pay.

Whether council tax arrears can go in a plan explains why they usually sit outside one, and our council tax debt advice page covers what follows.

Other fast movers

HMRC and the Child Maintenance Service have their own recovery powers as well. None of them depends on a plan provider agreeing anything.

The rules that protect you elsewhere do not apply

Those rules bind only firms the Financial Conduct Authority regulates. They do not reach your council for council tax, HMRC, or the Child Maintenance Service.

Whether a plan freezes interest sets out who those rules do bind.

One precondition that does apply to an arrestment

Under section 47(3) an earnings arrestment does not take effect unless the creditor gave you a debt advice and information package no earlier than 12 weeks before the schedule was served.

What should you do if a court letter arrives?

Do not ignore it, and do not assume the plan answers it. The dates on the document decide which options are still open.

Time is the thing you are protecting

Almost every option here has a deadline attached to it. Reading the letter a fortnight later removes choices rather than problems.

The first four things

• Read it and write down every date it contains.
• Tell your plan provider the same day.
• Check the sum claimed against your own records.
• Get advice about a time to pay application before the deadline passes.

Do not stop paying to fund a legal fight

The debt is still owed and the payments still reduce it. Stopping them makes the position worse rather than stronger.

Direction or order

A direction is applied for under section 1 at or before decree, and an order under sections 5 and 9 afterwards.

The ceiling on the order

A time to pay order is available where the debt is no more than £25,000 excluding interest, a figure substituted by SSI 2000/189 with effect from 10 July 2000.

We have not read the provision governing the ceiling for a time to pay direction, so we are not going to print a figure for it. It is very likely the same and that is not the same as checked.

HMRC and Revenue Scotland debts are excluded, and council tax is not. What a time to pay order is sets out the application.

What actually stops enforcement in Scotland?

Statutory measures, and only statutory measures. On a time to pay order section 9(2)(a) says the sheriff shall make an order recalling any existing earnings arrestment.

Route by route

Not may, shall. For a bank arrestment the same section says only that the sheriff may recall it, so the wage arrestment is the one the law makes automatic.

Why a time to pay order is the practical answer

It is the only route that reaches an existing arrestment without an insolvency solution behind it. That makes it the first thing to ask a money adviser about.

The moratorium is not the whole answer

A statutory moratorium stops new diligence for six months, and section 197(5)(d) lets a creditor carry on executing an earnings arrestment that was already in effect.

Whether a moratorium stops a wage arrestment deals with that in full.

And the scheme reaches an arrestment too

Approval of a programme under the Debt Arrangement Scheme recalls an arrestment of your income or property under regulation 33(1)(a).

Does a court action mean the plan has failed?

Not necessarily, though it is a signal worth acting on. One creditor moving to enforcement says something about that creditor rather than about the whole arrangement.

What it usually means

It is often a creditor that refused the plan, or one that never replied at all. What happens if a creditor refuses covers what to do about that.

Payments carry on reducing the balance in the meantime. Nothing about an action makes the money you have already paid disappear.

Expenses are added to what you owe

A creditor that raises an action can add the expenses of it to the debt. That is another reason to deal with the letter early rather than late.

Tell the provider and redo the budget

An action can add expenses to the debt and change what you owe. That changes the offer to everyone else in the plan.

Whether creditors have to accept a plan sets out what each of them is free to do.

Ask what the creditor actually wants

Some actions are about protecting a right rather than about collecting immediately. Ask whether the payments will continue to be accepted while it proceeds.

And check who is coming next

Sheriff officers act under a warrant or a decree rather than on their own initiative, and our sheriff officer advice pages set out their powers.

When does this mean you need a different route?

When enforcement has started, or when the creditor most likely to enforce is a large part of what you owe. Protection is the thing an informal plan cannot give you.

The signs

• A charge for payment, or a decree already granted.
• Money already leaving your wages or your bank account.
• Council tax arrears with a summary warrant behind them.
• A creditor that has refused to deal with your provider at all.

Nothing here is a reason to panic

Scottish enforcement runs in a fixed order and each step takes time. What it does not do is wait for an informal arrangement to work.

What to compare it with

The difference between a plan and the Debt Arrangement Scheme sets out what approval does that agreement cannot, and when to move to a statutory solution covers the decision itself.

Do the arithmetic first

Work out what share of your total debt sits with the creditors most likely to enforce. Where that share is large, the plan is dealing with the smaller half of the problem.

Where to get it done free

Citizens Advice Scotland, StepChange, National Debtline and Advice Direct Scotland all do this at no charge. Most councils also have their own money advice team.