The Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 came into force on 4 May 2021.
The Regulations provide legal protection to individuals in what the government guidance refers to as “problem debt”, with a specific route to a breathing space for individuals receiving crisis mental health treatment.
This scheme will only be applicable for individuals that have spoken with a debt advisor authorised by the Financial Conduct Authority (FCA). If the debtor meets requirements of the scheme, the debt advisor will be able to apply for one of two options available under Breathing Space.
The Regulations provide for two different types of moratorium for individuals:
1. Standard Breathing Space: provides legal protection from creditor action for up to 60 days, which includes pausing most enforcement action, contact from creditors, and freezing most interest and charges on their debts.
Eligibility for a Standard Breathing Space
These are available to:
Debtors will need to provide full details of their personal circumstances and debts to the debt advisor to start the process.
2. Mental Health Crisis Breathing Space: Only applicable to those receiving mental health crisis treatment. It lasts for the duration of the mental health crisis treatment, plus 30 days, regardless of the duration of treatment.
Eligibility for a Mental Health Crisis Breathing Space
The debtor must meet all of the criteria and conditions of the standard breathing space but must also be receiving mental health crisis treatment at the time the application is made.
An Approved Mental Health Professional (AMHP) must certify that a person is receiving mental health crisis treatment, and the AMHP’s evidence can be used by a debt adviser to start a mental health crisis breathing space.
There are also a number of other people who can apply to a debt advisor on behalf of the person receiving mental health crisis treatment including:
Cancelling a Mental Health Crisis Breathing Space
No mid-way review is needed (unlike for a Standard Breathing Space) however the advisor will regularly check that the debtor is still receiving mental health crisis treatment. The Mental Health Crisis Breathing Space must be cancelled by the advisor if either:
When a Mental Health Crisis Breathing Space ends
30 days after debtor’s mental health crisis treatment ended, or 30 days after the date a debt advisor has requested confirmation from the nominated point of contact about the debtor’s treatment and received no response.
Notification to creditors
The Insolvency Service maintains an electronic service that debt advisors use to start the Breathing Space process. The Insolvency Service is responsible for notifying creditors when a Breathing Space has commenced which affects a debt owed to that creditor.
The register will be private and creditors will not be entitled to access information on other debts owed by that debtor.
Creditors will also be notified once a Breathing Space comes to an end.
Effect on creditors
When a creditor receives a notification that a Breathing Space process has commenced, creditors are obliged to apply the protections provided for by the Regulations, for the duration of the Breathing Space.
The protections include disapplying any interest, fees, penalties or charges, and the cessation of action to collect the debt. In particular, creditors may not:
However, a Breathing Space is not a payment holiday and payments towards debts can be made and ongoing liabilities should be maintained.
At the end of a Breathing Space, the debtor may have entered into a debt solution such as a debt relief order, Individual Voluntary Arrangement, or bankruptcy.
The Breathing Space is a potentially useful tool that will allow individuals struggling with debt time to assess their options without the threat of bankruptcy or other creditor enforcement.
Healthcare businesses and professionals providing crisis mental health treatment should be aware of the ability to seek a Mental Health Crisis Breathing Space for individuals being treated where appropriate or useful.
For more information on the article above please contact Holly Ransley or another member of our Restructuring & Insolvency team.