Time to pay directions and orders

 November 2016

Fact sheet no. 06 SCOT Time to pay directions and orders

This fact sheet tells you how to apply for time to pay when someone is taking court action against you.

Use this fact sheet to:

  • find out if you can apply for a time to pay direction or order for the debt you have;
  • apply for a time to pay using the correct procedure and court forms; and
  • understand how time to pay directions and orders protect you from further action by creditors.

Which court process am I dealing with?

Since 28 November 2016, there are two different sheriff court procedures.

  • Simple procedure for debts up to £5,000.
  • Ordinary cause for debts over £5,000.

Some debts, for example council tax, can also be enforced in the sheriff court using a summary warrant. 

Claims for child support, personal injury, defamation and mortgage or rent repossession do not use the simple procedure. If a claim for a debt of up to £5,000 was started before 28 November 2016, the procedure may be different, contact us for advice.

This fact sheet explains how to ask for time to pay in ordinary cause actions or when a summary warrant has been issued against you. There are different rules for simple procedure actions.

Time to pay directions (TTPD)

A ‘time to pay direction’ allows you time to pay the decree either by weekly or monthly instalments or by a lump sum payment.

If the creditor accepts the payment offer then a decree with a time to pay direction will be granted.  Even if the creditor refuses your offer, the court can make an order for the time to pay direction at a court hearing anyway.

Warning:

inhibition

Even if you have a time to pay direction, creditors can still apply for an inhibition.  This is a type of diligence and means that a creditor can stop you from selling your home.

This means that no further steps, for example diligence, can be taken against you while the time to pay direction is in force.  This means that your creditor cannot:

  • serve a ‘charge for payment’ (the next stage in diligence);
  • arrest your wages or bank account;
  • instruct an attachment of non-domestic property; or
  • apply for an exceptional attachment order of your domestic property.
 

The court cannot make time to pay directions for:

  • debts over £25,000;
  • awards in connection with divorce;
  • maintenance; or
  • income tax, VAT or car tax. 
 

If you have a time to pay direction and you miss two payments, on the date the third payment becomes due, the time to pay direction collapses. Your creditor can then begin to enforce payment.

The form which you need to use for a time to pay direction is included in the ‘court summons’ or ‘writ’ that you receive before a decree is made. 

Extra advice: 

copies of information

Send a copy of everything direct to your creditor or their representative. You need to do this because the sheriff clerk will only send details of the amount offered, not how you arrived at it, and the creditor may have no way of knowing whether or not your offer is reasonable.

The form does not include much room for details.  It is a very basic income and expenditure sheet and does not give you a chance to mention dependents, health problems and so on.

Instead of replying on the form, you could consider drawing up a separate statement of your overall financial situation – including all the details required on the court form but adding extra relevant information, including details of income and expenditure, other debts and personal details.

If your financial circumstances change and you are unable to pay the amount you are supposed to pay under your time to pay direction, you can apply to have it varied.  You will need to use form 1 under the Debtors (Scotland) Act 1987.  Contact your local sheriff court for a copy of form 1.

After court action

Even in cases where you have not obtained a time to pay direction, or even ignored the summons or writ, you may still have a chance to get time to pay.

Although a creditor has taken court action against you and obtained a decree, the creditor may delay enforcing it and consider whether or not it is worthwhile to do so.

Many creditors will make a final attempt to negotiate payments with you before trying legal enforcement.

If the creditor decides to proceed they will need to try to enforce the debt by using diligence.

See our fact sheet:

Bankruptcy.

Time to pay orders

Once the formal process of diligence has begun, in other words once a ‘charge for payment’ or a bank arrestment has been served on you, you may be able to ask the court for time to pay.  This is done using a ‘time to pay order’. Such orders are similar to the time to pay directions in that they freeze any further diligence against you.

You cannot use a time to pay order when the debt is;

  • over £25,000;
  • for an award in connection with a divorce;
  • for maintenance; or
  • for income tax, VAT or car tax.

Extra advice:

when you can't apply for a time to pay order

You cannot apply for a time to pay order if you had already been granted a time to pay direction and fallen behind on the payments ordered by the court.

Information:

where to get the application form

You can get an application form for a time to pay order, called a DSA 2 , from the sheriff clerk’s office, a CAB, law centre or money advice centre.  If you cannot get one contact us for a copy.

The time to pay order application form is similar to a time to pay direction form, but includes more room for extra details such as your other debts. This information will show the sheriff why you can’t pay the full amount, but that you can pay instalments towards the debt. If you want help to complete the form, contact us for advice.

Send the form to the sheriff clerk’s office. Time limits depend on the circumstances, but any delay will affect your ability to stop or reverse forms of diligence.

If your creditor does not object to the payment offer, the sheriff will grant a time to pay order after 14 days. This effectively freezes diligence and the creditor cannot carry out an attachment, apply for an exceptional attachment order or instruct an arrestment of your wages or bank account.

If the creditor objects to the payment offer a date for a hearing will be fixed. Either you or your adviser can speak before the sheriff who will decide on the rate of repayment. In practice, debts need to be paid off in approximately two years.

Time to pay orders prevent creditors applying pressure on you to pay sums that you cannot afford.

If you find it difficult to maintain payments, for example, because of a change in circumstances, you can apply to the sheriff to reduce instalments by using a ‘variation of a time to pay order’. You need to complete a form and send it to the sheriff’s clerk.  Consult a CAB, law centre or local money advice centre for help or contact us for advice.

Time to pay and council tax debt

See our fact sheet:

Council tax recovery.

You can apply to the sheriff for time to pay your council tax debt.  You can only do this after the council has issued a formal demand for the money you owe.  This is called a 'charge for payment'.

You need to apply on form DSA 2.  You might be sent an application form for a time to pay order along with the charge for payment.  If not, and you are unable to get one from a local advice centre, contact us for a copy.

Remember:

further action

If your time to pay application is granted and you keep making the payments ordered, the council cannot make you bankrupt or use diligence against you.

Time orders for credit debts

See our fact sheet: 

Time orders.

A ‘time order’ is another way of asking the court to give you more time to pay a loan agreement. You may be able to apply for a time order if your credit agreement is regulated by the Consumer Credit Act 1974. Whether or not your agreement is regulated will depend on when you took out your agreement and how much you borrowed at the time. The rules about time orders are complicated. If you think that a time order may be useful for you, contact us for advice

The Debt Arrangement Scheme (DAS)

See our fact sheet:

Debt Arrangement Scheme (DAS).

You may be able to apply for debt-payment programme under the Debt Arrangement Scheme (DAS). This is a way of putting all of your debts together and making one monthly payment that you can afford. This is paid to an approved payment distributor who sends the money to your creditors for you.

  • A debt-payment programme will cancel most forms of diligence (enforcement action) such as arrestment of your bank account, or an earnings arrestment.
  • DAS also freezes interest, fees and charges on your debt, from the date that you apply for your debt-payment programme.