Earning Arrestments and Frequently Asked Questions

What is an Earning Arrestment?

In Scotland, an earning arrestment, (also known as a wage arrestment), is a form of diligence.

Diligence is a Scottish legal term for procedures that are used to recover debts.

What an earning arrestment does, is it allows your creditors, the people you owe money to, to recover that money by forcing your employer to deduct it from your wages, usually on a daily or monthly basis.

Your employer has no choice but to comply with the order, if it is served on him by a sheriff officer, but he can only deduct certain amounts from your wages and cannot leave you without any money.

Normally, an earning arrestment continues until such time the debt is paid off, which would include paying off any interest and legal costs your creditor has incurred in trying to recover the debt from you.

It can sometimes be possible to get an earning arrestment stopped before the debt is repaid in full. To find out more about this see How do you lift an earning arrestment. 

How do Earning Arrestments work?

Before a sheriff officer can execute an earning arrestment, however, they must first ensure the creditor has met the necessary legal requirements enabling them to do so. This means they must first have obtained a court order or its equivalent, or have a document of debt that provides them with a warrant to recover their debt using an earning arrestment.

A court order is an order granted by the Sheriff in the Sheriff Court, although it can also be granted by the Court of Session. The legal equivalent of a court order, a Summary Warrant, is also granted by the Sheriff Court for certain types of Government debts, such as council tax arrears, owed to local authorities; or income tax, owed to HMRC.

A document of debt is more complex, but certain creditors like landlords and credit unions can register debts for what is known as preservation and execution in the Books of Council and Session. This allows them to legally recover debts using a sheriff officer, without going to court. This process is known as summary diligence. However, for them to do this you need to give them permission when you enter into the original agreement you had with them and which the debt arose from. This is not an option open to credit card companies and banks.

Prior to instructing a sheriff officer to execute an earning arrestment, a creditor first must instruct them to serve what is known as a Charge for Payment. This is a legal demand for payment that is served by a sheriff officer. It gives you 14 days to pay your debt in full. If you fail to pay the debt within the 14 days, the lender is then in a position where he can instruct the sheriff officer to arrest your earnings.

Practical Considerations of Earning Arrestments

There are many practical considerations that a lender must take into consideration before they execute an earnings arrestment. The first of these is, he must know where you work. If he does not know where you work, sheriff officers will obviously struggle to serve the schedule on your employer.

Even if they do know where you work, another practical consideration is whether the arrestment will be successful, in that you may not earn enough for any deductions to be made from your earnings. 

Finally, a creditor incurs legal costs in executing an earnings arrestment, which they may lose if you later choose to use an option like a Protected Trust Deed or Sequestration.  Also, the earning arrestment may have the effect of making the debtor seek advice and even if the choose not to use an insolvency solution, they may apply for a Debt Payment Programme under the Debt Arrangement Scheme or a Time to Pay Order, both of which if successful would result in the earning arrestment being lifted. 

For these reasons, most creditors will only take the risk of executing an earning arrestment if they feel all other options have been explored and exhausted.

More on Earning Arrestments...

Wage Arrestment – How much can be taken?

When a creditor arrests your wages, they are limited as to how they can take. Your employer cannot take any more from your earnings when a wage arrestment is executed than what is show below in the tables. What table applies, depends on whether you are paid daily, weekly or monthly.

Earning Arrestment Schedule

Table A – Deductions from Weekly Earnings

Net EarningsDeductions(*)
Not exceeding £113.68Nil
Exceeding £113.68 but not exceeding £410.90£4 or 19% of earnings exceeding £113.68, whichever is the greater
Exceeding £410.90, but not exceeding £617.82£56.47 plus 23% of earnings exceeding £410.90
Exceeding £617.82£104.06 plus 50% of earnings exceeding £617.82
  (*) When applying a percentage the calculation should be done to two decimal places of a penny and the result rounded to the nearest whole penny, with an exact half penny being rounded down.

Table B – Deductions from Monthly Earnings

Net EarningsDeductions(*)
Not exceeding £494.01 Nil
Exceeding £494.01 but not exceeding £1,785.61 £15.00 or 19% of earnings exceeding £494.01, whichever is the greater
Exceeding £1,785.61 but not exceeding £2,684.51 £245.40 plus 23% of earnings exceeding £1,785.61
Exceeding £2,684.51 £452.15 plus 50% of earnings exceeding £2,684.51
    (*) When applying a percentage the calculation should be done to two decimal places of a penny and the result rounded to the nearest whole penny, with an exact half penny being rounded down.

Table C – Deductions from Daily Earnings

Net EarningsDeductions(*)
Not exceeding £16.24Nil
Exceeding £16.24 but not exceeding £58.70 £0.50 or 19% of earnings exceeding £16.24, whichever is the greater
Exceeding £58.70 but not exceeding £88.26 £8.07 plus 23% of earnings exceeding £58.70
Exceeding £88.26£14.87 plus 50% of earnings exceeding £88.26
  (*) When applying a percentage the calculation should be done to two decimal places of a penny and the result rounded to the nearest whole penny, with an exact half penny being rounded down.

Can you have more than one Wage Arrestment?

More than one wage arrestment is possible at the same time. This is known as a conjoined arrestment and is administered by by the local sheriff clerk, rather than the employer.

It does not mean you have to pay more.  Instead what happens is the amount deducted  is divided up between those that are owed the money.

It also means the first creditor who arrested the wages will see the amount they get being reduced.  It also means those who execute the second wage arrestment wont get what they would have if they had been the only creditor arresting the wages. For this reason, it can be to advantageous to explain to other creditors you already have an arrestment in place.  This may put them off from taking furher action and encourage them to accept an informal offer from you instead.

However, if you believe you are about to get a second wage arrestment,  you should seek  advice. A conjoined wage arrestment will stop you applying for the Debt Arrangement Scheme, unless another creditor tries to lawful enforce their debts.  This can place you at a disadvantage, as in the Debt Arrangement Scheme  all debts can be included, with interest and charges frozen, which does not happen in a conjoined earning arrestment.

Return to the Earning Arrestment Homepage.

How do you stop a Earnings Arrestment?

Earning Arrestments can be both prevented and lifted using formal legal remedies that are available in Scotland.

Statutory Moratorium

The first way to stop an earning arrestment is to stop it occurring in the first place.  This is possible using what is known as the Statutory Moratorium procedure. This is a free process and does not involve the courts.  Instead, it involves registering a moratorium on the Register of Insolvencies, which is administered by the Accountant in Bankruptcy, a Scottish Government Agency.

Statutory moratoriums provide you with six weeks protection from a creditor executing any diligence, such as a wage arrestment. However, you can only use a Statutory Moratorium once every 12 months, so it is important to do so with caution, and only after you have sought advice. The idea behind it is during those six weeks, you should take steps to protect yourself, so you have a long term solution in place at the end of the six weeks.

A Statutory Moratorium, however, will not help if an earning arrestment is already in place, as it will not lift it.

Time to Pay Orders

Time to Pay Orders can also be used to  lift an earning arrestment. You can only apply for one, however, if you have not previously applied for one for the same debt.

Time to Pay Orders are applied for via the Sheriff Court and do not cost anything, although you may be liable for fees if you use a solicitor the creditor is represented in court by one and you are not successful.  You can find out more about Time to Pay Orders here.

Debt Arrangement Scheme

A Debt Payment Programme under the Debt Arrangement Scheme can also lift an earning arrestment, but only once it has been approved. On approval the arrestment is lifted as the debt is re-paid through the Programme. However, you cannot apply for a Debt Payment Programme if you have more than one wage arrestment (a conjoined arrestment), unless an additional creditor decides to take further action.

More information on the Debt Arrangement Scheme can be found here.

Protected Trust Deed

A Trust Deed lifts an Earning Arrestment once it becomes protected. A Trust Deed is protected five weeks after the creditors are notified by the Trustee that one has been granted and providing enough creditors don’t object to it. The Accountant in Bankruptcy also have to agree to register it.

As Trust Deeds include all debts accrued prior to them being granted, the creditors are able to make a claim in the Trust Deed.

More information on Protected Trust Deeds can be found here.

Sequestration (Bankruptcy)

The final method that can be used to lift an Earning Arrestment is an award of bankruptcy, otherwise known as Sequestration in Scotland.

Once the sequestration is awarded by the Accountant in Bankruptcy, or by the Court (where a creditor makes you bankrupt), the Trustee notifies the creditor and the wage arrestment should cease. Like with Protected Trust Deeds, the creditor should then make a claim in the bankruptcy.

More information on bankruptcy can be found here.

Return to the Earning Arrestment Homepage.

 

Can a Wage Arrestment be taken from Sick Pay?

Can a wage arrestment be taken off your sick pay?  Yes, it can.  This is because sick pay, even Statutory Sick Pay (SSP) is treated as income and a wage arrestment can be taken from your sick pay.

However, if all your receive is Statutory Sick Pay, as the current amount payable is only £92.05 per week, this means nothing can be taken as the first £113.68 is protected.

However, If you are in receipt of contractual sick pay, which is an increased amount, payable over and above SSP, you may have to pay something.

To see how much, view the earning arrestment tables.

Return to the Earning Arrestment Homepage.

 

 

Comments

  1. Scottish Adviser Post author

    Hi Dale

    Thank you for your enquiry.

    Essentially you can offer anything, however, Scott & Co are not obliged to accept your offer.

    You don’t say whether the £50 per month would greater than the 19%. If it was and there was a reason why you wanted to offer more, rather than just let the Earning Arrestment run, they may accept your offer providing you understand if you miss a payment they would revert back to the earning arrestment.

    The only other way to stop the Earnings Arrestment, other than using the Debt Arrangement Scheme or a Protected Trust Deed or bankruptcy, where your debt situation is quite severe, is to apply for a Time to Pay Order. When making one of these orders, the Sheriff cab make a order recalling the Arrestment at the same time.

  2. John

    Hi,

    Can an earnings arrestment or a freeze on my bank account be applied to benefits?

    Such as carers allowance?

    1. Scottish Adviser Post author

      Hi John

      An Earning Arrestment can’t affect your Carers Allowance as Carers Allowance is not classed as earnings. As it is paid to you by the Secretary of State, it cannot be arrested in her hands.

      Your bank account could be arrested, however, if there is more than £494.01 in it at any point.

      The general rule is benefits cannot be arrested; however, in practice the bank will freeze any funds in the account over £494.01, regardless of the source of the funds and transfer them to the Sheriff Officers after 14 weeks unless they receive instructions from them or the Court not to.

      If the only funds in the account are benefits it is possible to argue they need to be released because the arrestment is incompetent; however, if they have been mixed in with wages, this argument is not likely to succeed, but another one may, such as the arrestment is unduly harsh.

      This is a complex argument and I cover it my article on how to challenge bank arrestments. Your local advice agency can help you with this if it happens.

      However, if you think it may happen, it may be worth while thinking about getting all your benefits paid into one account and other income, such as wages, into another.

      I would suggest if it hasn’t happened, but you think it may, the best thing to do is speak to your local money advice agency. It may be a Statutory Moratorium may be appropriate, which gives you 6 week protection.

      If I can help any further, let me know.

  3. Lorraine

    I have just been dismissed on the grounds of ill health and i’m due 8 weeks notice pay as well as any outstanding holiday pay, does holiday pay get deducted separately?

    1. Scottish Adviser Post author

      Hi Lorraine

      I am sorry you have been let go. As it is on the grounds of ill health, can I suggest you get a full benefit check from your local advice agency, just in case there are benefits you are entitled to but not receiving. You can also see my page on benefit checks.

      Regarding your wages, if it is all being paid at the same time, it will be deducted at the same time. However, how the calculation is carried out for your holiday pay is different.

      So, how you calculate it for your normal earnings is using the Earning Arrestment Tables.

      Then for your holiday pay, you treat this separately. so if it was three weeks holiday pay you would use the weekly tables.If it was three weeks and two days, you would use the weekly tables for the three weeks and then the daily tables for the daily amount

      Can I also suggest that if you are due a lump sum payment, you really want to get advice, as the sheriff officers could also apply for a Bank Arrestment if they know a lump sum will be going into your account, but getting advice and applying for a Statutory Moratorium could protect you.
      You can find your local Citizen Advice Bureau here, or contact your local council and ask who can help you with debt and benefit advice.

      1. Lorraine

        Thank you very much for your advice.

  4. Danielle

    Do they need to notify you and ask for your employers details before an arrestment is made ?

    1. Scottish Adviser Post author

      Hi Danielle

      Thanks for coming on.

      No they don’t need to ask for your employer’s details. They obviously need it, but they often get this information as you have previously told them, possibly when applying for credit or if you previously entered a repayment plan with them and then missed a payment.
      They do need to have served you a Charge for Payment and a Debt Advice and Information Pack, or they cannot do a wage arrestment.
      They don’t need to do any more than than that.
      If you are worried about an Earning arrestment, you could speak to an adviser about putting on a Statutory Moratorium which gives you 6 weeks protection to explore all your options for dealing with your debts. This could include using the Debt Arrangement Scheme which not only prevents an Earning arrestment being used, but also lifts them where they have already been executed.

  5. Ann

    If you receive an earning arrestment notification and it has the wrong employer details, can they enforce this or do that have to send out another notification with the correct information?

    If the person at the old firm give them information is this a breach of GDPR?

    1. Scottish Adviser Post author

      Hi Ann

      The legislation does not say the Earning Arrestment Schedule (Form 30) has to have the correct employers name in it, but I think we can take that as a given.

      The Schedule is served on the employer under the Debtors (Scotland) Act 1987, so it is a legal document. It should, therefore, be properly drafted and precise as to who it is addressed to, as it is effectively a legal instruction and does have consequences. Like all legal instructions, it should contain certainty.

      Take for example the situation, where the employer does not comply with the Earning Arrestment Schedule, they can be held liable for the sums they should have taken if it is found they were wrong not to have complied with it.

      Equally, if they deduct sums from an employee’s wages that they had no legal authority to take, they could face an action from the employee for making illegal deductions from their wages in an employment tribunal.

      If I was an employer and received such a notification and it was not properly addressed to me I would be raising the matter with the Sheriff Officers themselves. They should serve a properly addressed schedule. If they didn’t I would ask they properly address it. I cannot imagine they would refuse to.

      If they did refuse, I would speak to the Society of Sheriff Officers and Messenger at Arms or the Sheriff Clerk at the local Sheriff Court.

      In terms of whether an employer would be in breach of GDPR by notifying a creditor or Sheriff Officers of their previous employee’s new place of work, they would not as there is a legal requirement on them to do so under section 70A (5) of the 1987 Act, if there was a previous earning arrestment in place. However, they must also notify their previous employee that they have passed the information on.

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