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

This guidance describes the general functions of Accountant in Bankruptcy, interim trustees, trustees and commissioners in relation to their responsibilities regarding bankruptcies which started on or after 30 November 2016.

8.6 Variation to the amount of the DCO

The trustee may increase, or decrease, the amount of the DCO under section 95 of the Act for the following reasons:

  • section 95(1)(a) on the application of the debtor, following a change of circumstance
  • section 95(1)(a) if they consider it appropriate, following a change of circumstance or upon receipt of the Current State of Affairs
  • section 95(1)(a) when sending to AiB a Debtor Discharge Report.

8.6.1 Actions of the trustee

It is the expectation of the Accountant that the trustee will make a decision on a whether a variation is appropriate within 14 days of becoming aware the change is requested or required.

The trustee must use the CFT to calculate the variation to the amount.

When the trustee has made the decision to vary under section 95(1)(b) it cannot take effect before 14 days beginning with the day on which the decision is made.

The trustee must notify, in writing, their decision to vary, or refuse to vary, the DCO:

  • the debtor
  • any person required to make a payment under a Form 19 or 20 using a Form 21 of The Regulations (see section 1.5)
  • any other interested person e.g. all creditors
  • AiB

The parties should be notified of their right of review.

All parties should be given a copy of the Debtor Contribution Order Variation Form. 

The trustee must upload to BASYS:

  • the notification of the variation to the amount of the DCO
  • copy of the new CFT calculation
  • evidence to support the change, for example:
    • copy of Current State of Affairs
    • wage slips
    • evidence that the debtor is now only in receipt of benefits
    • new tenancy agreement
    • letter to advise of change to rent or utility payments
    • copy of receipts over a three month period to record increase/decrease of expenditure (i.e. fuel costs)
    • bank statements
    • if applicable, evidence and explanation to support a breach of a trigger figure

When the Accountant considers the variation is not appropriate or the information provided is insufficient, or incorrect, a notification will be issued providing the reasons and the steps to be taken to remedy the situation.

8.6.2 Variation to the amount of a DCO – review and appeal

An application can be made by the debtor or any interested person to the Accountant’s independent review team for a review of a decision made by the trustee to vary the amount of the DCO.

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

When an application is received against a decision when the trustee considered it appropriate to vary the DCO following a change of circumstances the order is suspended until the determination of the review.

The team must take into consideration any 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 make representation 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.

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