How do you stop a Wage Arrestment?

Wage/Earnings Arrestment

Earnings Arrestment

Earning Arrestments (or wage arrestments) are a tool that Creditors can use to recover their debts, once they have taken you to Court.

They can, however, be both prevented and recalled using different legal debt procedures in Scotland.

Below we outline what these procedures are.

Statutory Moratorium

Statutory Moratorium

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 in ever 12 month rolling period,  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 that  you have a long term solution in place at the end of the Moratorium.

A Statutory Moratorium, however, will not help if an Earnings Arrestment is already in place.

Time to Pay Directions/ Orders

Time to Pay Orders can also be used to  lift an Earnings 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 or the creditor is represented in court and you are not successful.

What is the Debt Arrangement Scheme?

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 being 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.

What is a Protected Trust Deed

Protected Trust Deeds

A Protected Trust Deed lifts an Earnings 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.

Sequestration

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.

Comments

  1. Donna

    I signed up for a Moratorium which was approved on 12th Feb this year after a charge for payment was served in December. I understand a wages arrestment finished in January and think they applied another (another year of council tax) during my moratorium. Can you advise where I stand with this as I am trying to confirm dates with them and they seem reluctant to confirm, what can I do if they did proceed with an arrestment during that moratorium? Any advice appreciated! Thanks

    1. Scottish Adviser Post author

      Hi Donna

      If your Moratorium was active they were not allowed to execute another wage arrestment during the live period of the Moratorium.
      They should have checked the Moratorium register, but if they didn’t, they should lift the arrestment and refund any money taken immediately.
      They should also remove any fees attached. The best thing to do is check the register for your Moratorium and send them a print out from it.
      You can check it here.
      Ascertaining the date the arrestment was executed should be easy as it is on the Schedule of Arrestment your employer was sent.
      If you are having difficulties finding your name on the Register, email the Accountant in Bankruptcy, they should be able to confirm whether it was registered or not.
      If the Sheriff Officers refuse to lift the wage arrestment, make a complaint to their professional body the Society of Messenger at Arms and Sheriff Officers (SMASO).
      If they have arrested your wages whilst a Moratorium was in place what they have done is illegal.
      Ultimately if you don’t get a resolution, and I am sure you will at the SMASO stage if not before you can complain in writing to the Sheriff Principal of your local Sheriff Court. Mark your email for the attention of the Sheriff Clerk. Visit the Scottish Courts website to find details of your local Sheriff Court.
      If the Moratorium was not active they will have been allowed to arrest your wages. However, there are ways of getting wage arrestments lifted. See here.
      Also Moratoriums are only temporary so you should seek advice from your local advice agency as soon as possible to find a permanent solution.

      1. Donna

        Thank you so much. I will confirm the dates with my employer as they claim they lodged it with them on 7th January however I am sure they had an existing arrestment still in place then. The awful thing is they served the charge for payment on 17th December (an hour after I totalled my car and was just stood there after the police just dropped me home) so you don’t really get the 14 days with the court over christmas closures etc. Disgusted they planned this so you have less time to apply to the court. Thank you anyway.

        1. Scottish Adviser Post author

          No problem Donna

          One other thought, if it was put on when your Moratorium was on, it should be lifted and you should be refunded all sums that have been deducted.
          The law is clear, putting on a wage arrestment when a Moratorium is active is not competent.
          They cannot do it then just let it continue after the Moratorium. Its fruits from the poison tree. If the wage arrestment was incompetent everything that flows from it was incompetent, so you would be entitled to a full refund in my opinion.
          If you do succeed in this or getting it lifted, remember, they can just put another one on. Also if you got money refunded and paid into your bank account, they could just arrest your bank account.
          So if this looks likely, you may want to register a new Moratorium.
          Previously, you could only do one a year, but that rule has currently been waived because of Coronavirus and as before they only lasted 6 weeks, they currently last 6 months.
          I hope it works out.

          1. Donna

            Hi, thanks to your advice and some digging it turns out there was a previous earnings arrestment which had been running since 2018 but the council withdrew the balance from Sheriff Officers in October 2019 (C Tax band change etc), and Sheriff Officers just kept it running and taking payments. So when they tried to serve this new arrestment on 7th January this year my employer told them there was still one running. They apparently then just emailed on 29th Jan to tell my employer swap them – I signed the moratorium early February.

            The continued payments they took from previous arrestment after October 2019 were allocated to an old account with odd ref numbers then suddenly to this current one once I pushed them for full statements. They’ve now withdrawn this current arrestment as the balance was suddenly paid off earlier than expected. So from what I can see the new arrestment wasn’t competent and will now push for a refund. And new moratorium signed, thankyou so much as they would have got away with this, and quietly just keep taking deductions last year.

            1. Scottish Adviser Post author

              Fantastic you got to bottom of this Donna.
              Good digging and I am glad I could help.
              I have seen this type of sloppy practice in the past, where Sheriff Officers have just left earning arrestments running and reallocated funds. Also where one has ended and the full amount for that month has been recovered, but only part of it was owed, so rather than refund they have allocated the funds to another debt.
              This is not allowed. An earning arrestment is for a specific debt. When it ends the arrestment ends and they must execute another one for other debts.
              Therefore, if a debt has ended and they have allowed it to continue they must refund the funds arrested. If they have already paid them to the creditor that is their problem. They had no legal authority to do so, and don’t negotiate with them, in my opinion, insist politely on the funds being refunded to you in full by them and if they refuse take in to SMASO.
              If they still refuse, write to the Sheriff Clerk at your local Sheriff Court.
              If you also need help contact your local advice agency or law Centre.
              I will also give you a tip. There is also a name, I believe for what they did, that is little known, as its so unusual, but its an actionable legal wrong in Scotland at Common Law. Mentioning this may get them to take you serious. Its called wrongful diligence. I haven’t written about it (yet, but may need to in this climate), but here is a link to some stuff on it from the Scottish Government website (Wrongful Diligence).
              Importantly the action is against the Sheriff Officers, not the Creditors as Officers of the Court.
              Best of luck. Hope it works out and let me know if you can.

  2. James

    I had a wage arrestment threat. After reading this I found an agency that managed to get me on a payment plan, Thanks for the information on this post because I had no idea about wage arrestments [edited].

  3. Stuart

    Hi There

    I have been told that A debt company are going to arrest my wages due to council tax arrears.

    I missed the deadline to come up with a payment plan by one day.

    Is there anyway I can have this stopped and still come up with a suitable plan.

    I fear I could lose my job through this.

    1. Scottish Adviser Post author

      Hi Stuart

      It sounds like the Company you are dealing with is a Sheriff Officer firm.

      You can do something to stop the wage arrestment, but you need to act fast before they serve the arrestment schedule on your employer.

      You can apply for a Statutory Moratorium yourself online, which stops all Sheriff Officer action for 6 months. You can find out more here.

      You can apply for a Moratorium online for free through the Register of Insolvency Homepage, see here.

      Once you have done that and it’s been registered notify the Sheriff Officers, as they should not attempt the wage arrestment once the Moratorium has been registered.

      A Moratorium is usually Registered within 24 hours of applying. If a wage arrestment is executed after the Moratorium, it has to be withdrawn. However, if the wage arrestment goes on before the Moratorium, it cannot recall it. Time is of the essence, therefore.

      There is other ways to recall wage arrestments after they have been executed. See here.

      Moratoriums should not damage your credit rating, though not paying debts may. Councils do not share non-payment of Council Tax with Credit Reference Agencies.

      Once the Moratorium is on, though, don’t relax, it won’t last for ever. You should look at what options are available to you,like the Debt Arrangement Scheme, for example, which protects you from Sheriff Officers and is free to apply for. There are other options too.

      I hope this helps. If you get a chance, I would be grateful if you could maybe give us a review and rating on Trust Pilot.

      1. Stuart

        Thank you for replying, will this enter me into bankruptcy though as I have looked it up and it gives that impression. I work full time so want to start a payment plan again but when I phoned the Sheriff officers they said this would not be possible. Is this the only way?

        1. Scottish Adviser Post author

          Moratoriums don’t require you to do anything.

          The legislation for them is contained in the Bankruptcy (Scotland) Act 2016,but that is just because the idea is people should
          Use them to get advice including on Bankruptcy, Trust Deeds and the Debt Arrangement Scheme. However, you don’t need to do anything.

          I can promise you using a Moratorium does not require you to do anything.

          You can even negotiate an informal repayment plan whilst you are using a Moratorium and start paying the debt, like you intended,but you will need the Sheriff Officers to agree to it.

          Legally you cannot force them to agree to your proposal or to take no further action.

          The Debt Arrangement Scheme (DAS) is different in that they can be forced to accept it and if approved they cannot take further action (so understandably they wouldn’t want you to apply for this). However, DAS requires you to include all your debts, including credit cards and loans, so can damage your credit rating and ability to obtain credit in future.

          You can also apply for a Time to Pay Order just for Council Tax, but this has to be done through the Courts and may involve a hearing in front of a Sheriff if they refuse to accept it. It is free to apply and just involves the debt you apply for it for. They are quite time consuming to get into place.

          I would suggest if you are worried about the danger of a wage arrestment and the Sheriff Officers won’t accept a reasonable offer or are demanding a lump sum payment, applying for a Moratorium now will protect you, and give you more time to seek advice and consider all your options.

          You also may want to read up more on wage arrestments,before they apply for one. They have to serve a Charge for Payment first, if they have not already, but this can see fees being added to your debt.

          1. Stuart

            Thank you very much for your reply I really appreciate it. I have sent an application off, what are the next steps I would need to take?

            Thanks again!

            1. Scottish Adviser Post author

              Check tomorrow its on the Register (See here). You only need your name and post code to search.

              Also let the Sheriff Officers know your now on and give them the reference number and ask they note it on your file. Ideally email them too. They should check before taking any action, but they often don’t and you have to get them to recall the action, which can be a pain.

              I would then use the time to get advice and help and advice on all your options (see here for a list of free advice agencies).

              1. Scottish Adviser Post author

                I know it says Register of Insolvencies, but you are not Insolvent, its just where the Scottish Government posts the Moratoriums so Sheriff Officers can check before they do a wage arrestment, as if a Moratorium has been registered they are not allowed to.

                It comes off after 6 months when the Moratorium expires.

                If you have any question email the Accountant in Bankruptcy (Scottish Government Agency) who administer them at moratorium@aib.gov.uk.

                1. Stuart

                  Thank you for your reply. I have sent the request off by email 58 hours ago and not heard anything back yet. I am worried this has now effected my chances and that my wages will be arrested. Is there anything else I can possibly do, I will give the sheriff officers a call again tomorrow but I highly doubt that they will stop.

                  All advice is highly appreciated.

                2. Stuart

                  I sent off an online application for a statuary moratorium 48 house ago but have heard nothing back, I think this may now ruin my chance to stop wages being arrested. Is there any other way I can possibly do this. Any advice would be greatly appreciated.

                  Thanks again.

                  1. Scottish Adviser Post author

                    Hi Stuart

                    It should not take more than 24 hours for an moratorium to be registered. I appreciate you say you have heard nothing back, but have you checked the register to see if your details have been added?

                    You can apply for a Statutory Moratorium yourself, but you can also get help to do it, but check it has not been registered first.

                    If you need help details of your local advice agency are here.

                    1. Scottish Adviser Post author

                      Hi Stuart

                      As I say I cannot say why your Moratorium has not been registered yet, if it hasn’t.

                      There is a Form 33 that must be signed and uploaded when you create it online. This is explained on the Register of Moratoriums Homepage (See Here). The Form (Form 33) can also be emailed to moratorium@aib.gov.uk.

                      You can also email that address if you have any questions about the Moratorium you have tried to create.

                      Contacting the Sheriff Officers to let them know you need more time is not a bad idea, but they do not need to give you it, and may ask for an immediate payment to put things on hold.

                      As I said before a Moratorium, is the only legal way to immediately put things on hold. Other options like the Debt Arrangement Scheme, Time to Pays, Bankruptcies and Trust Deeds can all also provide you with legal protection, but none are as quick as a Moratorium as first you need to get advice and your suitability and eligibility has to be assessed before applying through an advice agency.

                      Advice Agencies can help you put Moratoriums on also.(Click on link).

                      Finally, you don’t say but a wage arrestment is only an immediate risk if you have had a Charge for Payment served on you by Sheriff Officers for the debt in the last 2 years.

  4. Jason

    Hi Alan

    I had a wage arrestemtn today of £369, I thought this was rather steep. I usually only make around 1500 so this to me is a large sum of my wage. How should i proceed with this? My debst are not that much in total either.

    Many Thanks

    Jason

    1. Scottish Adviser Post author

      Hi Jason

      They can arrest your wages over £529.90 at various rates depending on how much you earn. Initially it is 19%, but this climbs to 23% after you earn more than £1,915.32.
      Even if you earned only £1,500 per month they could still take £184 approximately.
      There are a number of ways to get a wage arrestment lifted (going forward), otherwise it will continue to your debts are paid.
      If you would like to discuss this further either speak to your local Citizen Advice Bureau or if you want a call back you can request one here from Carrington Dean.

  5. Michael

    Hi,
    I have a few debts probably totalling around £15k and these are Car Purchase ( HP ) 8k currently arresting my wages at £48 per week and then I have store cards, mortgage arrears ( 3k ) and a 2k loan. I own my home in a joint mortgage with my wife, what is the best route to go down to get these dealt with and start rebuilding my credit file.

    Michael

    1. Scottish Adviser Post author

      Hi Michael

      I wouldn’t dare suggest what is the “correct” solution as, there are potentially multiple solutions available to you, depending on your more detailed circumstances.

      I am usually happy to give specific answers to specific questions, but I couldn’t suggest, using this medium of communication, what is the best solution.

      Your circumstances are complex as it involves:

      Joint ownership of a property;
      Mortgage arrears;
      An Earning arrestment; and
      Car finance

      You need a holistic solution, that is one that deals with all these issues and takes into consideration the affordability of any solution.

      The best advice I can give and my normal practice is to recommend seeking advice from your local Citizen Advice Bureau or Local Authority Money Advice Service.

      All I would say is get proper advice from a reputable agency and I am absolutely certain they will help get you back on track again.

      And a word of caution, if someone tells you something that sounds too good to be true, it probably is, so get a second opinion if you are doubtful.

  6. Mary

    I am looking for advice on how I can get my wage arrestment reduced?

    1. Scottish Adviser Post author

      Hi Mary

      Wage arrestments cannot be reduced, as they are based on a table that calculates how much the employer must take.

      The only option is to speak to the creditor and ask if they will stop it and allow you to enter into a voluntary arrangement, although this is unlikely to happen, as having gone to the expense of obtaining a wage arrestment, most creditors will not agree to voluntarily stop it and take less payments.

      There are a number of options for stopping wage arrestments, which you can find out more from my page on stopping wage arrestments.

      You can normally obtain assistance in doing this from your local Citizen Advice Bureau of Local Authority Money Advice Service.

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