Exceptional Attachment Orders are a type of court order that Sheriff Officers need before they can enter your home and seize your possessions to pay your debts.
They are different from Attachment Orders in that Attachment Orders only allow a Sheriff Officer to take items, such as cars, that are kept outside your home.
Although, one of the least used forms of debt recovery in Scotland, last year 195 Exceptional Attachment Orders were granted, primarily for Council Tax Arrears.
Exceptional Attachment Orders
|Council Tax Debt||HMRC Debts||Non-Tax Debts||Total|
Before a Sheriff will grant an Exceptional Attachment Order, the person you owe money to first must convince him that there are exceptional circumstances.
This, in practice, means the Creditor must show they have already made reasonable attempts to negotiate the repayment of the debt with you. They also must have served on you a Charge for Payment, giving you 14 days to repay the debt in full.
They also must have instructed Sheriff Officers to try and recover the debt first using less intrusive methods first, such as:
If the Creditor can show, however, they did not use these methods as they would not have resulted in them recovering their reasonable expenses and £100 towards the debt, they can be excused from not doing so.
They must, however, also show, that there is a reasonable prospect that if the Exceptional Attachment Order is executed, there will be non-essential items that can be attached in the home and if auctioned, can reasonably be expected to raise the costs of carrying out the Exceptional Attachment Order and £100 towards the debts.
What are Non-Essential Items?
Non-essential items are items in your home that Sheriff Officers cannot take to be sold. For a full list of Essential Items that cannot be attached, see here.
What will the Sheriff Consider before granting an Exceptional Attachment Order?
Sheriffs will consider several factors, such as:
- The nature of the debt owed, including whether it is a tax debt or a trade debt;
- Whether you live in the home;
- Whether you operate a business from your home;
- Whether you have received money advice;
- Whether you have previously had a Time to Pay Direction or Order and it has lapsed because you missed payments;
- Whether you have or have had an agreement with the creditor for the payment of the debt;
- Whether there is any evidence of any non-essential assets that could be taken, what their value is and where they are located;
- Your financial circumstances; and
- Whether you have applied for a Debt Payment Programme under the Debt Arrangement Scheme; or if you have previously had one, why it was revoked.
Prior to making an order, the Sheriff can instruct that you first should receive a visit from a money adviser to give you advice on your debts.
Sheriff Officers Powers of Entry
Sheriff Officers have a power to open lock and shut fast places.
This means if you lock the door or are not in, they can get a locksmith to come and open it. As they are executing a court order; if you try an obstruct them, they can call the police and you can be arrested and possibly face charges of Contempt of Court.
Once they have had an Exceptional Attachment Order granted, they normally must give you at least 4 days’ notice of when they intend to visit your home (Sheriff Court judges can dispense with this requirement if requested to by the Creditors. You do not need to be told beforehand that the Creditor has asked for this requirement to be dispensed with).
Sheriff Officers, however, should not attempt to enter the property if they know there are only children under the age of 16 in the home; or people who are not likely to be able to be able to understand the procedure being carried out because of their age, knowledge of English, mental health or because of a mental or physical disability.
There are certain days and times of days when attachments cannot be carried out, these are:
- A Sunday;
- A day which is a public holiday
- Attachments also should not begin before 8 am or after 8pm, or be continued after 8pm, unless prior permission of the court is obtained.
Acts before an attachment is executed
Anyone, which includes the person that owes the money, who moves, sells, gifts or destroys an item that could be subject to an attachment, after the Exceptional Attachment Order is made, but before it is attached, may be found to be in breach of the Order. They could be held liable for the value of the item and found to be in Contempt of Court.
Removal of items that are attached
When a Sheriff Officer carries out an attachment, he can only attach items that are not deemed to be essential. He also should also not attach items that are likely to have a sentimental value, such as a wedding ring, where the value of those items does not total £150.
Where he does attach an item, he should place on it a value that it would achieve if it was sold on the open market. If he wants to, he can obtain a professional valuation for the item.
He also should also arrange to remove the items from the home immediately, or if that is not possible as soon as possible after the attachment is executed.
Where an item is removed, however, it should not be auctioned until at least 7 days after it is removed. This is to allow the debtor to redeem the item at the value placed on it, or to object to the attachment on the grounds it is unduly harsh.