Notes for Guidance - Bankruptcy (Scotland) Act 2016 (as amended)

The debtor may be discharged from their bankruptcy at the end of one year from the date of the award of bankruptcy, as detailed in section 137(2) of the Act.

The Accountant does not expect a trustee to recommend the discharge of a debtor if they have not been co-operating. If it is the recommendation of the trustee that a debtor who has not co-operated should be discharged, the trustee must provide both an explanation why they consider it is appropriate and details of the action they have taken to try and get the debtor to co- operate.

14.1.1 Actions of the trustee

The trustee must provide a report on BASYS, without delay, 10 months after the date of the award of bankruptcy.

The BAI team expects trustees to have submitted their report within three weeks of the end of the 10 month period. If the report is submitted after this period the trustee should include in their report an explanation why the report could not be submitted within this period.

When a trustee consistently fails to submit reports timeously, without good cause, consideration will be given to making a report to their professional body.

14.1.2 Application to the Accountant

The application and report should be created on BASYS. 

The report should include:

• information on:
  • the debtor’s assets
  • liabilities
  • financial affairs,
  • business affairs (i.e. the current status of the realisation of the assets or investigations)
• the debtor’s conduct in relation to these assets (i.e. did the debtor disclose all the assets etc and have they co-operated)
• information on the debtor’s conduct in the course of the bankruptcy (i.e. has the debtor provided all information requested and co- operated with the trustee)
• any other information about the bankruptcy the trustee deems appropriate
• a statement by the trustee advising whether the debtor has at the date of the report
• complied with any DCO (provide details of any missed payments or variations made)
• co-operated with the trustee in terms of section 215 (i.e. has the debtor provided all relevant information and documentation on request)
• complied with the statement of undertakings:
  • made a full and fair surrender of their estate
  • notified the trustee of any further assets acquired after the date of bankruptcy
  • informed the trustee of any change to address or financial circumstances
  • co-operated and provided requested documentation
  • completed any required financial education modules;
• a statement by the trustee as to the extent, as of the date of the report, they have completed their functions under section 50 of the Act

After submitting the application on BASYS the trustee must send a copy of the report to the debtor and all known creditors providing details of their right to make representations to the BAI team within 28 days of the notification. The report can be downloaded from BASYS.

It is important to provide the BAI team, the debtor and creditors with as much information as possible to make a decision, or allow them to assess if representations should be submitted.

The trustee should also ensure all relevant documentation and information relating to the case has been uploaded to BASYS. 

14.1.3 Actions of AST

The BAI team will:

• consider the information provided by the trustee and where appropriate request further information and/or evidence
• consider any representations received with the specified timescale

14.1.4 Actions of the Accountant

The Accountant will consider discharging the debtor if:

• all their obligations have been met
• the trustee has been able to administer the case in a satisfactory manner
• a DCO has been made and payments have been maintained;
• representations have not been received to the suggest discharge should not be granted

The Accountant will not consider discharging the debtor if:

• all their obligations have not been met
• the trustee has not been able to administer the case in a satisfactory manner
• a DCO has not been made, unless the trustee can confirm they have sufficient funds in hand to pay all creditors in full including statutory interest, at the time of making the report
• a DCO has been made and payments have not been maintained
• representations have been received to the suggest discharge should not be granted

The BAI team will notify the decision to the trustee and the debtor.

The trustee must within seven days of receipt of the decision notify all known creditors and provide details of the review and appeal procedure.

The decision of the Accountant to grant or not grant discharge will not take effect before the end of the period of 21 days beginning with the day the BAI team notifies their decision.

The Accountant will (if appropriate) make the entry on the Register of Insolvencies and place a copy of the certificate of discharge in the electronic Sederunt Book at a date which is later of:

• 12 months from the date of the award
• the day following the expiry of the review period
• the day following the outcome of a review
• the day following the decision of an appeal of a review

14.1.5 Subsequent debtor discharge reports

When a debtor was not discharged after 12 months from the date of award the trustee will require to submit a subsequent report when they consider it appropriate for the debtor to be discharged using the process as 14.1.2.

Evidence should be provided to confirm the reasons for which the debtor was not discharged have been resolved:

• evidence of co-operation of debtor i.e. documents provided
• evidence that trustee is able to administer the case satisfactorily
• when a DCO has been made at a later stage at least 10 months have passed since the first payment date and the debtor is maintaining payments

14.1.6 Effect of discharge on the debtor’s estate

The discharge of the debtor has no bearing upon any estate which may vest in the trustee as at the date of bankruptcy, or estate which subsequently vests before the expiry of four years from the date of bankruptcy.

The effect of discharge is found in section 145 of the Act and it has no effect on the trustee’s powers and duties under the Act. Those powers and duties remain until the estate has been realised, distributed and the trustee discharged.

Subject to section 112(2) and (3) of the Act a debtor is usually re-invested in such estate only upon recall or reduction of the award of bankruptcy.

14.1.7 Discharge of debtor - review and appeal

An application can be made by the debtor or trustee to the Accountant’s independent review team for a review of a decision made by the Accountant to refuse to discharge the debtor.

An application can be made by any creditor to the Accountant’s independent review team for a review of a decision made by the Accountant to grant discharge the debtor. In this circumstance the decision to discharge the debtor will be put on hold until the outcome of the review is decided.

An application must be received before the expiry of 14 days from the date the decision was made by the Accountant.

The team must take into consideration submissions made by any interested person before the expiry of 21 days from the date the application.

The outcome of the review to confirm, revoke or amend the decision, determination or requirement must be made before the expiry of 28 days from the date the application for review was made.

Any person entitled to request a review may appeal the review decision to the sheriff before the expiry of 14 days from the date the review decision, determination or requirement was made.

The sheriff’s decision is final.