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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.

8.7 Quashing a DCO

The trustee may bring the DCO to an end before the completion of the 48 months:

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

It is expected that a DCO will only be quashed before it expires when it has been set at nil, or very small contribution amount is being paid and it is the trustee’s belief that the debtor’s financial circumstances are unlikely to change during the remaining DCO term, in a way that may bring any financial benefit to the estate, e.g. there is no expectation an unemployed debtor will re-enter employment.

8.7.1 Actions of the trustee

The trustee must:

  • complete a CFT calculation
  • record the change that justifies quashing the DCO, for example:
    • increase or decrease in benefits or wages
    • increase or decrease in expenditure (e.g. council tax or  housekeeping)

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

  • the debtor
  • any person required to make a payment under a Form 19 or 20
  • any other interest person e.g. all creditors
  • AiB

The parties should be notified of their right of review.

The debtor and any person required to make a payment under a Form 19 or 20 should be given a copy of the Debtor Contribution Order variation form. 

The trustee must update BASYS with the new amount and upload:

  • notification to quash the DCO
  • copy of the new CFT calculation
  • evidence to support the change, for example:
    • copy of the 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 or decrease of expenditure (i.e. fuel costs)
    • bank statements
    • if applicable, evidence and explanation to support a breach of a trigger figure
  • a copy of the Debtor Contribution Order Variation Form 

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

8.7.2 Quashing a DCO – review and appeal

An application can be made by the debtor, any creditor or any interested person to the Accountant’s independent review team for a review of a decision made by the Accountant to grant or refuse a recall of bankruptcy.

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 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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