Commentary on Provisions(1) Modification of the Bankruptcy (Scotland) Act 2016 Section 6 – When sequestration is awarded: minimal asset process
26.Section 2 of the 2016 Act provides that an award of bankruptcy may be applied for by a debtor, a qualified creditor or creditors, or certain other parties. Prior to the changes introduced by the 2007 Act, all applications for bankruptcy were made by petition to the court. The 2007 Act made provision for an application for bankruptcy by a debtor to be made by debtor application to AiB rather than by petition to the court.
27.A debtor can make this application under section 2(2) of the 2016 Act through the Minimal Asset Process (known as “MAP” bankruptcy) for debtors who have a lower level of debt or, if they cannot use the MAP process, under section 2(8) of the 2016 Act for a full administration bankruptcy. A MAP bankruptcy is open to individuals who have limited assets and are in receipt of certain prescribed payments or have insufficient income to make a contribution to their bankruptcy. Where a debtor application is made, section 22 of the 2016 Act provides that AiB must award bankruptcy where, among other criteria(3), section 2(8) applies to the debtor (which is the reference for full administration criteria). However, there is no cross reference to section 2(2) which is the relevant provision for MAP bankruptcy. The intention is that all bankruptcies (both MAP and full administration), which meet the required criteria under the relevant subsection of section 2 of the 2016 Act, should be awarded without delay. This section applies that change to section 22 of the 2016 Act.