What Is An Unduly Harsh Application And How Do You Make One?

A sheriff cannot reduce a Schedule 2 deduction because you cannot afford it. The figure comes from the statutory tables, and the tables do not bend to individual circumstances.

So this page does two things. It sets out the unduly harsh route properly for the case it was written for, and it then gives the routes that do act on an arrestment already coming off your wages.

Which arrestments does the unduly harsh route cover?

Sections 73Q and 73R of the Debtors (Scotland) Act 1987 apply where an arrestment attaches funds or moveable property. In practice that means a bank arrestment, or an arrestment in the hands of a third party holding something of yours.

What the two sections attach to

The distinction is about what the arrestment catches. A bank arrestment freezes a sum already sitting in an account, while an earnings arrestment intercepts pay period by period using a fixed statutory table.

The Debtors (Scotland) Act 1987 treats those as two different problems and gives them two different remedies. One of them has a hardship ground and the other does not.

Where each arrestment sits

The table below is the whole of the scope question in one place. The third column names the provision behind each answer.

Nothing in the wages row depends on how large the deduction is. It is a question of which diligence the sections were written for.

Can you make an unduly harsh application against a wage arrestment?

No. Sections 73Q and 73R do not apply to wages, so there is no hardship or affordability application against an ordinary earnings arrestment.

What section 50 allows instead

The only review power over an earnings arrestment is section 50 of the 1987 Act. Two applications sit inside it, and neither is about affordability.

There is no time limit on either application.

The limits of section 50

Section 50 carries no affordability or hardship ground. A sheriff has no power under it to lower a deduction because the deduction is unaffordable.

Section 50(1) is the route where an arrestment is invalid or has ceased to have effect, and section 50(3) is the route where there is a dispute about how it is being operated. Our guide to challenging a wage arrestment you think is wrong covers what falls into each.

Payroll applying the wrong table, or working from gross rather than net pay, is a dispute about operation. The protected earnings limits set out the figures a payroll department should be working from.

What test does the sheriff apply on an unduly harsh application?

Under section 73R(2) the sheriff shall order the release of the funds where satisfied that the arrestment is unduly harsh to you or to a dependant. The word is shall rather than may, once the sheriff is satisfied.

What the sheriff has regard to

Section 73R(3) directs the sheriff to all the circumstances. Two of them are named on the face of the subsection.

• The source of the arrested funds.
• Whether an earnings arrestment, a current maintenance arrestment or a conjoined arrestment order is already running against you.

So a wage arrestment already deducting from your pay is relevant to the application, even though it cannot be attacked on hardship grounds itself.

Who counts as a dependant

Section 73R(4) defines a dependant as a spouse, a civil partner, a cohabiting partner or a child under 16. Their circumstances count alongside your own.

That matters where the arrested money was the household’s rent or food money rather than only yours. Say who else the money was keeping.

Where the money came from

Benefits and tax credits should not be arrested where they can be clearly identified in the account. Where they have not been identified, say so and show which credits they were.

How do you make an unduly harsh application?

The application is made to the sheriff court in Form 63G, under rule 69E of the 1988 Act of Sederunt. It can be made at any time while the arrestment has effect.

How it differs from the notice of objection

A notice of objection under section 73M has to be lodged within four weeks of execution. An unduly harsh application is a separate route with its own test.

Using one does not close off the other. Take advice on which fits your own facts.

Why the timing still matters

Arrested funds are frozen and released to the creditor automatically 14 weeks after execution, unless you sign a mandate releasing them earlier or lodge an objection. The application has to be made while the arrestment still has effect.

Applications go to the sheriff court, and a free money adviser can prepare one with you. Do not wait for the 14 weeks to run down.

What to gather first

• The arrestment schedule or the bank’s letter, showing the date of execution.
• Bank statements covering the period, showing where the arrested money came from.
• What the money was needed for, such as rent, a mortgage payment or essential bills.
• Details of anyone financially dependent on you.
• Details of any earnings arrestment or maintenance deduction already running.

Does the route reach a council’s bank arrestment for council tax?

Yes. Section 73A(4) defines a decree for this Part of the Act as including a summary warrant, and council tax is collected under a summary warrant.

Why the creditor being a council does not shut you out

A summary warrant is granted by the sheriff court on the council’s application, supported by a certificate, without a hearing. Section 73A(4) brings it inside the same Part as an ordinary decree for this purpose.

So the unduly harsh route is available against a council’s bank arrestment. The test is the same one in section 73R.

What a bank arrestment can attach

An arrestment can attach only the balance above £1,000, under section 73F(3)(a) of the 1987 Act, a figure put on the face of the statute with effect from 1 November 2022. Our guide to how a bank arrestment works covers the mechanics.

Joint accounts are messier and there is no clean rule to rely on. Take that one to a money adviser or a solicitor rather than working it out yourself.

What can you do about an unaffordable wage arrestment instead?

The routes that work end or displace the arrestment rather than trimming it. A Time to Pay Order, an approved Debt Payment Programme, sequestration and a protected trust deed each act on an earnings arrestment by statute.

What each route does to an arrestment already running

The table below is keyed to that single question. The third column gives the provision behind each answer.

For a Time to Pay Order the recall is mandatory rather than discretionary, and a summary warrant counts as a decree or other document for that purpose. Whether an application is competent on your own facts is a question for a money adviser, and how to stop a wage arrestment sets out the sequence.

The Debt Arrangement Scheme

A Debt Payment Programme under the Debt Arrangement Scheme freezes interest, fees and charges, which are written off on completion. What the scheme is covers how a programme is applied for.

Council tax arrears can go into a programme and the current year’s liability cannot. That has to keep being paid alongside.

Sequestration, MAP and a trust deed

Any existing earnings arrestment ceases to have effect on the date of sequestration, and the Minimal Asset Process counts because it is a form of sequestration. Whether bankruptcy stops a wage arrestment takes the dates apart.

For a protected trust deed the trigger is the date of protection under the Bankruptcy (Scotland) Act 2016, not the date you sign.

The statutory moratorium

A statutory moratorium gives six months of protection and you get one per rolling 12 months. It stops service of a charge for payment, stops new diligence and stops creditor petitions for sequestration.

It does not stop a creditor obtaining a decree, and interest and charges keep accruing throughout.

Whether a creditor can carry on an earnings arrestment your employer is already operating is treated differently in the Accountant in Bankruptcy’s adviser guidance from the general statement of the rule. Ask a money adviser to confirm the position on your facts before relying on it.

What happens when a bank arrestment and a wage arrestment run together?

The wage arrestment is one of the circumstances the sheriff weighs when deciding whether the bank arrestment is unduly harsh. Section 73R(3) names it.

The two remedies are not sealed off from each other

You cannot attack the earnings arrestment on hardship grounds. The fact that it is running goes into the balance on the bank arrestment application.

So put the payslips in with the bank statements. Whether you can have more than one deduction at a time covers how concurrent deductions interact.

Where displacement solves both at once

The routes in the table above reach the diligence rather than one arrestment. Which debt solution is best if you have a wage arrestment weighs them against each other.

One application can deal with the debt behind both arrestments. That is a different exercise from attacking either one of them.

Where do you get help making an application?

Start with a free money adviser rather than with the court. None of the free advice organisations charges you for it.

Who to ask

Citizens Advice Scotland, StepChange, Money Advice Scotland and National Debtline all give free advice, and your council may have its own money advice or welfare rights team. What free debt advice is available in Scotland sets out what each of them can and cannot do.

The Accountant in Bankruptcy publishes guidance on moratoriums, the Debt Arrangement Scheme, trust deeds and sequestration. Official guidance on debt and diligence covers the formal routes.

What to take to the appointment

• Payslips covering the last three months.
• Bank statements for the arrested account, where there is one.
• Every letter from the creditor and from the sheriff officers.
• A rough list of your income, your outgoings and your other debts.

Take the paperwork with you, because a deduction may be due off your next payslip.