Response to consultation on Debt Recovery (Mental Health Moratorium) Scotland Regulations

SASW's response to the Scottish Government proposals for a mental health debt mortarium

Question 1. Do you agree with the proposed mental health eligibility criteria as listed above?

☐  Agree

☒  Disagree

☐  Neither agree nor disagree

Please provide the reason for your response in the box below:

There is a risk not documented here that setting criteria will result in a perverse incentive to meet them to gain temporary relief. Rather than setting criteria each case should be judged on its merits and the presenting issues with a social worker as well as the other professionals listed. Social workers will be as focussed on promoting the person’s human rights and that person’s responsibilities to others under legislation as well as seeking relief from the pressure of debt

Question 2. Do you agree with the proposed debt eligibility criteria as listed above?

☒  Agree

☐  Disagree

☐  Neither agree nor disagree

Please provide the reason for your response in the box below:

Whilst we do agree we are surprised that gambling is not mentioned explicitly here. This is as likely to be a factor in a person’s mental ill health presentation as much it may be a consequence of their ill health. It may be necessary to create specific guidance for AiB around this particular issue and how it should be handled. We are surprised it is not being referenced here at all.

Question 3. Do you agree that an individual subject to a statutory debt solution should not be eligible for a Mental Health Moratorium?

☐  Agree

☒  Disagree

☐  Neither agree nor disagree

Please provide the reason for your response in the box below:

We cannot see a distinction between someone who has a debt solution but who is still accruing debt, perhaps because of a gambling dependency, and someone who does not have that solution. In the first case the accumulation of debt happens whether the statutory solution is in place or not. The purpose of the legislation should be to provide relief from any debt that is NOT in that solution. As this proposal is written that would not be available which would mean relief would not be equitably available to everyone during a period of treatment. There is a risk that the system could be seen to be unfair, punishing some and providing relief to others.

Question 4. Do you agree with the proposed definition of moratorium debt which would qualify to be protected in a Mental Health Moratorium (see regulation 3 in particular)?

☒  Agree

☐  Disagree

☐  Neither agree nor disagree

Question 5. Do you agree with the proposed requirement for AiB to confirm the mental health eligibility criteria is continuing to be met?

☐  Agree

☒  Disagree

☐  Neither agree nor disagree

Please provide the reason for your response in the box below:

6 months appears to be an arbitrary period to apply to mental ill health, which can improve and deteriorate. Recovery periods are very rarely 6 months. This appears to meet the needs of creditors over the needs of people receiving support. Again the period should be determined by the professionals involved, including a social worker who can support a human rights approach to managing the response to debt while addressing mental health problems.

Question 6. Do you agree with the proposed application process?

☐  Agree

☐  Disagree

☐  Neither agree nor disagree

Please provide the reason for your response in the box below:

Capacity can change. Many people who are determined to lack capacity may have moments of clarity when they can consent. A mental health officer is best placed to provide that advice. The principle of reciprocity suggests that we must balance the supports needed for informed consent with the consequences of failing to provide adequate protections. We are very concerned that there is no reference here to advance directives or the protection of human rights when someone is subject to compulsion. This includes the right to freedom from discrimination which might occur by denying someone access to this relief as a consequence of compulsion.

Question 7. Do you agree with the proposed process for the notification of the Mental Health Moratorium?

☒  Agree

☐  Disagree

☐  Neither agree nor disagree

Question 8. Do you agree with the proposed process for the registration of the Mental Health Moratorium?

☒  Agree

☐  Disagree

☐  Neither agree nor disagree

Question 9. Do you agree with the proposed Mental Health Moratorium protections included in the current draft regulations?

☒  Agree

☐  Disagree

☐  Neither agree nor disagree

Please provide the reason for your response in the box below:

Question 10. What are your views on how best to link the Mental Health Moratorium administrative processes and evictions procedures to ensure this work effectively together in practice?

Please provide your views in the box below:

We have significant concerns regarding how complications are presented in the document. While we acknowledge that Scotland offers relatively stronger tenant protections, we remain deeply concerned about the possibility of eviction during a person's treatment period. Should eviction occur, the resulting homelessness obligation will transfer to housing associations already managing limited inventory.

The primary focus of guidance and regulations should be tenancy preservation. Once a tenancy is terminated, there is a heightened risk of delayed discharges from mental health facilities. The fundamental principle must be to maintain tenancies, with eviction considered only as a final option, regardless of debt accumulation and certainly beyond the proposed arbitrary six-month recovery protection period.

Question 11. Do you agree that protection against the installation of pre-payment meters and disconnection of gas or electricity supply should be one of the protections available under the Mental Health Moratorium?

☒  Agree

☐  Disagree

☐  Neither agree nor disagree

Question 12. Do you agree with the proposed framework for the Mental Health Moratorium period?

☐  Agree

☒  Disagree

☐  Neither agree nor disagree

Please provide the reason for your response in the box below:

We have outlined our concerns, and emphasized the critical role social workers must play throughout this consultation. The appropriate timeframe should be established individually for each case and must include a social worker.

Question 13. Should an individual in a Mental Health Moratorium be subject to the following proposed obligations? (Please tick all applicable options)

☐  An obligation to pay a continuing liability

☐  An obligation to not obtain additional credit

☒  Some other obligation (please specify in the comment box below)

☐  No obligation at all

Please provide the reason for your response in the box below:

The obligation should be individualized to meet the needs of the person and the creditors.

Question 14. Do you agree with the proposed process for a creditor’s search?

☒  Agree

☐  Disagree

☐  Neither agree nor disagree

Question 15. Do you agree with the proposed consequences for creditors? 

☒  Agree

☐  Disagree

☐  Neither agree nor disagree

Question 16. Do you agree with the proposed process for an individual to request a review of AiB’s decision to either not grant or to cancel a Mental Health Moratorium?

☒  Agree

☐  Disagree

☐  Neither agree nor disagree

Question 17. Do you agree with the proposed process for a creditor to request a review of AiB’s decision to grant, or not cancel a Mental Health Moratorium?

☒  Agree

☐  Disagree

☐  Neither agree nor disagree

Question 18. Do you agree with the proposed cancellation process?

☒  Agree

☐  Disagree

☐  Neither agree nor disagree

Question 19. Do you agree with the proposed interaction between the Mental Health Moratorium and the standard moratorium?

☒  Agree

☐  Disagree

☐  Neither agree nor disagree

Question 20. We would be grateful for any further comments you have about the Mental Health Moratorium which has not been raised in this consultation.

No response