The Education (Student Loans) (Repayment) Regulations 2009

• (5) If HMRC is to give notices to an employer of two or more borrowers in accordance with paragraphs (1) or (3) or both, HMRC may give one notice in respect of all such borrowers containing, in respect of each of them, the particulars specified in paragraph (2) or (4) as the case requires.

Deductions of repayments

50

• (1) Every employer who has received any of the following—

• (a) a notice under regulation 49(1);

• (b) a Form P45 containing a statement under regulation 67 of these Regulations; ...

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) information under regulation 43 that the employee has any liability to repay any student loan ...,

must, on making to that employee any payment of earnings on the first available pay date, which falls on or after the date referred to in paragraph (2) and at any time after that pay date, but before the date referred to in paragraph (3), deduct the appropriate repayment in accordance with these Regulations.

• (2) The date is—

• (a) where the employer has received notice from HMRC under regulation 49(1), the date specified in the notice as the date on and after which deductions must be made;

• (b) where the employer has received a Form P45, the date on which that Form is first received; ...

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) where an employer has received information under regulation 43 that the employee has any liability to repay any student loan ..., the date on which that information is received.

• (3) The date referred to in this paragraph is the date specified in the notice given by HMRC under regulation 49(3) as the date on and after which deductions must not be made; and the employer must not make deductions on or after the first available pay day on or after this date.

• (4) Where two or more payments of earnings are to be aggregated for the purposes of calculating the amount of a repayment requiring deduction the employer may deduct that amount either wholly from one such payment or partly from one and partly from the other or any one or more of the others.

• (5) Subject to paragraphs (6) and (7), if the employer does not deduct from any payment of earnings to an employee the full amount of a repayment which should have been deducted, the employer may deduct the remainder of the sum which should have been deducted from any subsequent payment or payments of earnings to that employee during the same tax year.

• (6) An employer may not make a subsequent deduction in respect of any remainder not previously deducted after the date referred to in paragraph (3).

• (7) The amount of any subsequent deduction referred to in paragraph (5) may be an amount in addition to but must not exceed the amount deductible from the payment under the other provisions of this Part.

• (8) If the employer deducts any repayment from the earnings of an employee who is a borrower in accordance with these Regulations, the employer is not required to repay any amount to the employee only because that amount was not owed by the employee to the Authority or loan purchaser (as the case may be) as all or part of a student loan ....

• (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Priority where other deductions required

51

• (1) Where any employer is required to deduct repayments from a payment under regulation 50 but the aggregate of the deduction and any deductions on account of income tax and National Insurance contributions exceeds the amount of the payment, the employer must make the deductions on account of income tax and National Insurance first and the amount of the repayment which is to be deducted must be the remaining balance.

• (2) Where an employer is required to deduct repayments from a payment under regulation 50 and is also required to comply with one or more of any of the types of notice or order in paragraph (3), paragraph (4) will apply.

• (3) For the purposes of this paragraph, the notices and orders are—

• (a) attachment of earnings orders made under the Attachment of Earnings Act 1971 (“the 1971 Act”)³², the Community Charge (Administration and Enforcement) Regulations 1989³³ (“the Community Charge Regulations”), the Council Tax (Administration and Enforcement) Regulations 1992³⁴ (“the Council Tax Regulations”), the Judgments Enforcement (Northern Ireland) Order 1981³⁵, the Magistrates’ Courts Order 1981³⁶;

• (b) deductions of earnings orders made under the Child Support (Collection and Enforcement) Regulations 1992³⁷; or

• (c) income support deduction notices made under regulation 20 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988³⁸ (“the Social Security Regulations”).

• (4) An employer must deduct repayments as if they were amounts requiring deduction pursuant to an order under the 1971 Act which—

• (a) was not made to secure the repayment of a judgement debt or payments under an administration order;

• (b) was the most recent order under that Act not made for that purpose; and

• (c) specifies a protected earnings rate equal to the protected earnings rate specified in the most recent attachment of earnings order, deduction of earnings order or income support deduction notice not made for that purpose which specifies such a rate, unless there is no such order or notice.

• (5) Where in the circumstances described in paragraph (4) an employer is required to comply with an attachment of earnings order made under the Community Charge Regulations, the Council Tax Regulations or an income support deduction notice under regulation 20 of the Social Security Regulations before deducting a repayment under regulation 50, no repayment must be deducted by the employer.

• (6) Where an employer is required to deduct repayments from a payment under regulation 50 and is also required to comply with one or more earnings arrestments, current maintenance arrestments or conjoined arrestment orders within the meaning of the Debtors (Scotland) Act 1987³⁹ (whether or not also required to comply with an attachment of earnings order, deduction of earnings order or income support deduction notice), no repayments under regulation 50 may be deducted.

• (7) Where repayments to be deducted in accordance with paragraph (4) are reduced as a result of paragraph 4(c) and the total of the reduced payments includes pence as well as pounds the pence are to be ignored.

Deductions working sheet

52

• (1) The employer must record on the deductions working sheet for an employee the amount of any deduction from any payment of earnings under these Regulations.

• (2) Where two or more payments of earnings are to be aggregated for the purposes of calculating the amount of repayments requiring deduction, the employer must record a single amount, being the total of the amount requiring deduction in respect of the aggregated payments, rather than recording separate amounts in respect of each such payment.

Certificate of repayments

53

• (1) Where the employer is required to give an employee a certificate in accordance with regulation 67 of the PAYE Regulations, or paragraph 9 of Schedule 4 to the Contributions Regulations (Form P60), the employer must record in the certificate the amount of repayments deducted by that employer in the tax year to which the certificate relates.

• (2) Where the employer is not otherwise required to give an employee who is an employee on the last day of the tax year such a certificate but has deducted repayments in respect of a tax year the employer must give the employee a certificate showing the amount of repayments deducted for that tax year.

Payment of repayments deducted to HMRC

54

• (1) Subject to paragraphs (2) ... and (6) the employer must pay an amount equal to the smaller of the repayments—

• (a) deducted by the employer under these Regulations during an income tax month (and, where required, reported under regulation 59B or 59E); or

• (b) which the employer was required to deduct under these Regulations during that income tax month,

to HMRC within 14 days of the end of that income tax month.

• (1A) The amount specified in paragraph (1) must be adjusted to take account of errors corrected under regulation 59F(5).

• (2) Where, under paragraph 11 of Schedule 4 to the Contributions Regulations, the employer is required to pay National Insurance contributions due in respect of earnings paid in an income tax quarter within 14 days of its end, then subject to paragraphs (3) and (6), the employer must pay an amount equal to the smaller of the repayments—

• (a) deducted by the employer under these Regulations during an income tax quarter, or

• (b) which the employer is required to deduct during that quarter,

Notice and certificate when repayments deducted not paid

55

• (1) This regulation applies where, within 17 days of the end of any income tax period a non-Real Time Information employer has paid no amount in respect of ... repayments to HMRC under regulation 54 for that income tax period and HMRC is unaware of the amount, if any, which the employer is liable to pay.

• (2) Where this regulation applies, HMRC may give notice to the employer requiring the employer to render a return within 14 days in such form as HMRC may prescribe showing the amount in respect of ... repayments which the employer is liable to pay to HMRC under regulation 54 in respect of the relevant income tax period.

• (3) Where a notice given by HMRC under paragraph (2) extends to two or more consecutive income tax periods, these Regulations have effect as if the consecutive income tax periods were one income tax period.

• (4) HMRC may give notice under paragraph (2), even if an amount in respect of ... repayments has been paid to HMRC by the employer under regulation 54 for an income tax period, if HMRC is not satisfied that the amount paid is the full amount which the employer is liable to pay to HMRC in respect of the income tax period in question.

• (5) Upon receipt of a return made by the employer under paragraph (2) HMRC may prepare a certificate showing the amount in respect of ... repayments which the employer is liable to pay to HMRC in respect of the income tax period in question.

• (6) The production of the return made by the employer under paragraph (2) and of the certificate of HMRC under paragraph (5) is sufficient evidence that the amount shown in the certificate is the amount of ... repayment which the employer is liable to pay to HMRC in respect of the income tax period in question.

• (7) Any document purporting to be a certificate under paragraph (5) is deemed to be such a certificate until the contrary is proved.

Notice of specified amount and certificate when repayments not deducted

56

• (1) This regulation applies where, after 17 days following the end of any income tax period, the employer has paid no amount in respect of ... repayments to HMRC under regulation 54 for that income tax period and there is reason to believe that the employer is liable to pay such repayments.

• (2) Where this regulation applies, HMRC upon consideration of the employer’s record of past payments, whether of repayments or of combined amounts, may to the best of its judgment specify the amount in respect of any such repayments or of a combined amount which it considers the employer is liable to pay, and serve notice on the employer of that amount.

• (2A) In arriving at the amount under paragraph (2), HMRC may also take into account any returns made by the employer under these Regulations in the income tax period in which the return is made or earlier income tax periods.

• (3) Where the employer has paid no amount under regulation 54 for the relevant income tax periods, HMRC may give a notice under paragraph (2) which extends to two or more consecutive income tax periods and these Regulations have effect as if those income tax periods were the latest income tax period specified in the notice.

• (4) HMRC may give a notice under paragraph (2) even if an amount in respect of ... repayments has been paid to it by the employer under regulation 54 for any income tax period, if HMRC is not satisfied, having sought the employer’s explanation, that the amount paid is the full amount which the employer is liable to pay to it for that income tax period and this regulation will apply to the amount specified.

• (5) If the employer claims during the period allowed in a notice given under paragraph (2) that the payment made in respect of the income tax period specified is, or includes, the full amount of ... repayments which the employer is liable to pay to HMRC for that period, but does not satisfy HMRC of this, then—

• (a) the employer may require HMRC to inspect the employer’s documents and records as if an officer of Revenue and Customs had called upon the employer to produce those documents and records in accordance with regulation 60; and

• (b) regulation 60 applies to that inspection and the notice given by HMRC under paragraph (2) is to be disregarded.

• (6) Subject to paragraph (7), if the specified amount, or any part of it, is unpaid on the expiration of the period of seven days allowed in the notice, the amount unpaid—

• (a) is deemed to be an amount in respect of repayments or to include an amount in respect of any such repayment which the employer was liable to pay for that income tax period in accordance with regulation 54, and

• (b) may be certified by HMRC.

• (7) Paragraph (6) does not apply if during the period allowed in the notice—

• (a) the full amount which the employer is liable to pay to HMRC for that income tax period is paid, or

• (b) the employer satisfies HMRC that no amount, or no further amount, is due for that income tax period.

• (8) The production of a certificate under paragraph (6) is sufficient evidence that the employer is liable to pay the amount shown in the certificate to HMRC.

• (9) Any document purporting to be a certificate under paragraph (6) is deemed to be such a certificate until the contrary is proved.

• (10) Despite any other provision of this regulation, if an employer pays any amount certified by HMRC under this regulation and that amount exceeds the amount which the employer would have been liable to pay in respect of that income tax period apart from this regulation, the employer is entitled to set off such excess payment against any amount which the employer is liable to pay to HMRC under regulation 54 for any subsequent income tax period.

• (11) If the employer renders the return required by regulation 59 after the end of the tax year and pays the total net amount in respect of repayments which the employer is liable to pay, any excess amount paid and not otherwise recovered by set-off in accordance with this regulation is to be repaid.

Recovery of payments deducted through the income tax system

57

• (1) The provisions of the Taxes Acts and of any Regulations under section 684 of the 2003 Act relating to the recovery of tax apply to the recovery of any amount which the employer is liable to pay to HMRC under regulation 54, 55, 56, 59 or 60 as if that amount had been tax charged by way of an assessment on the employer as employment income under the 2003 Act.

• (2) Without prejudice to paragraph (1), regulation 84 of the PAYE Regulations applies to the amount shown in a certificate under regulation 55(5), 56(6), 59(4), or 60(4), with the modification that summary proceedings for the recovery of the amount in respect of repayments or a combined amount, or such part of it as remains unpaid, together with any interest payable on such amount, may be brought at any time before the expiry of 12 months after the date of the certificate.

• (3) In the application of any provisions referred to in paragraph (1) to any proceedings under this regulation which limit the amount which is recoverable in those proceedings, any other element of a combined amount which may by virtue of paragraphs (4) to (6) be included as part of the cause of action or matter of complaint in those proceedings is to be disregarded.

• (4) Proceedings may be brought for the recovery of–

• (a) the total amount which the employer is liable to pay to HMRC under regulation 54, or

• (b) the total amount which the employer is liable to pay HMRC as a combined amount including any amount under regulation 54, without specifying the respective amounts of any component of a combined amount or distinguishing the amounts which the employer is liable to pay in respect of each employee and without specifying the employees in question.

• (5) For the purposes of-

• (a) proceedings under section 66 or 67 of the 1970 Act (including proceedings under either section as applied by the provisions of this regulation), and

• (b) summary proceedings (including, in Scotland, proceedings in the sheriff court), the total amount specified in paragraph (4) will, subject to the provisions of paragraphs (3) and (6), be one cause of action or one matter of complaint.

• (6) Nothing in paragraphs (4) or (5) prevents the bringing of separate proceedings for the recovery of each of the several amounts referred to in paragraph (4) which the employer is liable to pay to HMRC for any income tax period in respect of each of the employer’s employees.

Interest on unpaid repayments

58

• (1) Subject to paragraphs (1A) and (2), where an employer has not on or before the 14th day after the end of an income tax period, beginning on or after 6 April 2014, paid an amount which the employer is liable to pay to HMRC under regulation 54 for that period, that amount will carry interest at the rate applicable under section 103 of the Finance Act 2009 for the purposes of section 101 of the Finance Act 2009 from that date until payment.

• (1A) Subject to paragraph (2), any amount which an employer is liable to pay to HMRC under regulation 54 and which is outstanding immediately prior to 6 April 2014 will carry interest from the 14th day after the end of the tax year in which it should have been paid to the date of payment at the rate applicable under—

• (a) section 178 of the Finance Act 1989 for the purposes of section 86 of the 1970 Act in respect of the period up to and including 5 April 2014; and

• (b) sections 101 and 103 of the Finance Act 2009 in respect of the period from 6 April 2014.

• (2) Where payment is made by an approved method of electronic communications, the interest payable under paragraph (1) must be calculated as if the date in paragraph (1) was the 17th day after the end of the tax period.

• (3) Interest payable under this regulation is recoverable as if it were an amount which the employer was liable to pay under regulation 54.

• (4) An amount to which paragraph (1) applies carries interest from the day mentioned in that paragraph even if that date is a non-business day within the meaning of section 92 of the Bills of Exchange Act 1882.

• (5) A certificate of HMRC that to the best of its knowledge and belief, any amount of interest payable under this regulation has not been paid to it by the employer, is sufficient evidence that the amount of interest shown on the certificate is unpaid and is due to the Crown.

• (6) Any document purporting to be a certificate under paragraph (5) is deemed to be such a certificate until the contrary is proved.

• (7) HMRC may prepare a certificate certifying the total amount of interest payable in respect of the whole of a combined amount without specifying to what component of the combined amount the interest relates and paragraphs (5) and (6) will apply to that certificate.

• (8) Where an employer has paid interest on an amount under this regulation and it is found not to have been due to be paid, although the amount in respect of which it was paid was due to be paid, that interest must be repaid to the employer.

Returns by employers

59

• (A1) This regulation applies to—

• (a) a non-Real Time Information employer;

• (b) a Real Time Information employer in relation to tax years in which the employer was, for the whole of the tax year, a non-Real Time Information employer; and

• (c) a Real Time Information employer to whom HMRC has given a notice requiring a return under this regulation in respect of a tax year.

• (1) Not later than 44 days after the end of the tax year the employer must deliver to HMRC in such form as HMRC may approve or prescribe, a return showing in respect of each employee, in respect of whom the employer was required at any time during the tax year to prepare or maintain a deductions working sheet in accordance with regulation 52—

• (a) such particulars as HMRC may require for the identification of the employee;

• (b) the tax year to which the return relates; and

• (c) the total amount of repayments deducted for the tax year from the earnings paid to the employee.

• (2) The return required by paragraph (1) must include—

• (a) a statement and declaration in the form approved or prescribed by HMRC containing a list of all deductions working sheets on which the employer was obliged to keep records in accordance with these Regulations in respect of the tax year; and

• (b) a certificate showing the total amount of repayments deducted for the tax year in respect of each employee.

• (3) Where the employer is a body corporate, the declaration and the certificate referred to in paragraph (2) must be signed by the secretary or a director of that body corporate.

• (4) If within 17 days of the end of any tax year an employer has failed to pay to HMRC the total amount of repayments which the employer is liable to pay under regulation 54, HMRC may prepare a certificate showing the amount of repayments remaining unpaid for the tax year in question.

• (5) Where an employer fails to make a return in accordance with paragraph (1), the employer is liable—

• (a) to a penalty or penalties of the relevant monthly amount for each month (or part of a month) during which the failure continues, but excluding any month after the twelfth or for which a penalty under this paragraph has already been imposed, and

• (b) if the failure continues beyond 12 months, without prejudice to any penalty under sub- paragraph (a), to a penalty not exceeding so much of the amount payable by the employer in accordance with the Regulations for the tax year to which the return relates as remained unpaid at the end of the 22 April after the end of that tax year.

• (6) For the purposes of paragraph (5), the relevant monthly amount in the case of a failure to make a return is—

• (a) £100, where the number of persons in respect of whom particulars should be included in the return is fifty or less;

• (b) £100 for each fifty such persons, where that number is greater than fifty; and

• (c) an additional £100 where the number of persons referred to in sub-paragraph (b) is not a multiple of fifty.

• (7) Where a return under this regulation must be made—

• (a) at the same time as–

• (i) any specified return which must be made in accordance with Regulations made by HMRC under section 684 of the 2003 Act or section 70(1)(a) or 71 of the Finance Act 2004 to which section 98A of the 1970 Act (penalties) applies; or

• (ii) any specified return which must be made in accordance with Regulations made by HMRC under paragraph 6 of Schedule 1 to the Social Security Contributions and Benefits Act 1992 in respect of which section 98A of the 1970 Act has been applied by such Regulations; or

• (b) if the circumstances are such that a return mentioned in paragraph (a) does not fall to be made, at a time defined by reference to the time for making that return, had it fallen to be made,

and a person has been required to pay a penalty under section 98A(2)(a) of the 1970 Act in respect of the tax return or the National Insurance contributions return or both, that person must not also be required to pay a penalty in respect of any failure to submit the return under this regulation.

• (8) For tax years—

• (a) ending on or before 5 April 2009, where an employer fraudulently or negligently makes an incorrect return under paragraph (1), the employer will be liable to a penalty not exceeding £3000 for each employee in respect of whom incorrect particulars are included in the return;

• (b) commencing on or after 6 April 2009, where the date on which the return is due to be filed is on or after 6 April 2010, where an employer carelessly or deliberately makes an incorrect return under paragraph (1) penalties as set out in Schedule 24 to the Finance Act 2007 (penalties for errors) will apply as they apply in connection with PAYE.

• (9) A certificate under paragraph (4) that the net amount in respect of ... repayments remaining unpaid for that year has not been paid to it by the employer is sufficient evidence that the sum shown on the certificate is unpaid and is due to the Crown.

• (10) Any document purporting to be a certificate under paragraph (4) is deemed to be such a certificate until the contrary is proved.

Inspection of employers’ records

60

• (1) For the purposes of carrying out inspections of an employer’s records in relation to checking their compliance with this Part, Schedule 36 to the Finance Act 2008⁴⁰ (information and inspection powers) applies as it applies in relation to checking a person’s tax position (as defined in that Schedule) subject to the modifications in paragraph (2).

• (2) The modifications are —

• (a) any reference to any provision of the Taxes Acts is to be treated as a reference to this Part;

• (b) the reference to information relating to the conduct of a pending appeal relating to tax is to be treated as a reference to information relating to the conduct of a pending appeal relating to compliance with this Part;

• (c) paragraph 21 is omitted; and

• (d) any reference to “statutory records” includes all documents and records relating to the repayments requiring deduction under this Part including any notice received under regulation 50(9).

• (3) Statutory records (as defined in Schedule 36) must be retained by the employer for not less than 3 years after the end of the tax year to which they relate.

• (4) HMRC may, in relation to each inspection, prepare a certificate showing—

• (a) the amount in respect of ... repayments which it appears from the documents and records produced that the employer is liable to pay HMRC for the years or income tax periods covered by the inspection; and

• (b) any amount in respect of such ... repayments which has not been paid to HMRC.

• (5) A certificate under paragraph (4) is sufficient evidence that the employer is liable to pay the amount shown in the certificate pursuant to paragraph (4)(b) to HMRC in respect of the years or income tax periods shown in the certificate.

• (6) Any document purporting to be a certificate under paragraph (4) is deemed to be such a certificate until the contrary is proved.

Powers to obtain information

61

• (1) For the purposes of obtaining information in relation to checking an employer’s compliance with this Part, Schedule 36 to the Finance Act 2008 (information and inspection powers) applies as it applies in relation to checking a person’s tax position (as defined in that Schedule) subject to the modifications in paragraph (2).

• (2) The modifications are —

• (a) any reference to any provision of the Taxes Acts is to be treated as a reference to this Part;

• (b) any reference to prejudice to the assessment or collection of tax is to be treated as a reference to prejudice to the assessment or collection of ... repayments;

• (c) the reference to information relating to the conduct of a pending appeal relating to tax is to be treated as a reference to information relating to the conduct of a pending appeal relating to compliance with this Part;

• (d) paragraphs 21, 35(4)(b), 36 and 37(2) are omitted; and

• (e) a reference to “statutory records” includes all documents and records relating to the repayments requiring deduction under this Part including any notice received under regulation 50(9).

Formal determination of repayments payable by employer

62

• (1) This regulation applies where it appears to HMRC that there may be repayments payable by an employer under regulation 54 which—

• (a) have not been paid to HMRC, and

• (b) have not been certified by HMRC under regulation 59.

• (2) Where this regulation applies, HMRC may determine the amount of those repayments to the best of its judgement and must serve notice of the determination on the employer.

• (3) A determination under this regulation may—

• (a) cover the repayments payable by the employer under regulation 54 for any one or more tax periods in a tax year, and

• (b) extend to the whole of the repayments or such part of them as is payable in respect of a class or classes of employees specified in the notice of determination (without naming the individual employees) or of one or more specified, named employees.

• (4) The provisions of Parts 4 (Assessment and Claims), 5 (Appeals and Other proceedings) , 5A (Payment of Tax) and 6 (Collection and Recovery) of the 1970 Act apply to a determination under this regulation, with any necessary modification—

• (a) as if the determination were an assessment for the purposes of that Act; and

• (b) as if the amount of repayments determined was income tax charged on the employer.

Interest on unpaid repayments which have been formally determined

63

• (1) Subject to paragraph (1A), where—

• (a) an employer has not paid an amount of repayments to HMRC under regulation 54;

• (b) HMRC makes a determination of the amount of such repayments under regulation 62; and

• (c) repayments are payable pursuant to that determination,

those repayments will carry interest at the applicable rate under section 103 of the Finance Act 2009 for the purposes of section 101 of the Finance Act 2009 from the 14th day after the end of the income tax period in which they are payable, beginning on or after 6 April 2014, until payment.

• (1A) Any repayments under paragraph (1) that are outstanding immediately prior to 6 April 2014 will carry interest from the 14th day after the end of the tax year in which it should have been paid to the date of payment at the applicable rate under—

• (a) section 178 of the Finance Act 1989 for the purposes of section 86 of the 1970 Act in respect of the period up to and including 5 April 2014; and

• (b) sections 101 and 103 of the Finance Act 2009 in respect of the period from 6 April 2014.

• (2) Interest payable under this regulation is recoverable as if it were an amount which the employer is liable to pay under regulation 54.

Death of employer

64

If an employer dies, anything which that employer would have been liable to do under these Regulations must be done by the employer’s personal representative, or in the case of an employer who paid earnings on behalf of another, by the person succeeding that employer, or if not succeeded, by the person on whose behalf that employer paid earnings.

Succession to a business

65

• (1) This regulation applies where there has been a change in the employer from whom the employee receives earnings in respect of the employment in any trade, business concern or undertaking or in connection with any property, or from whom an employee receives an annuity other than a pension.

• (2) Subject to paragraph (3), where this regulation applies in relation to any matter arising after the change of employer, the subsequent employer is liable to do anything that the previous employer would have been liable to do if there had been no change of employer.

• (3) No subsequent employer is liable for the payment of repayments deducted from an employee’s earnings before the change of employer unless those repayments are also deductible from earnings paid to the employee after the change of employer.

Payment by cheque

66

For the purposes of regulations 54 to 58, where—

• (a) any payment to HMRC is made by cheque, and

• (b) the cheque is paid on its first presentation to the banker on whom it is drawn, the payment will be treated as paid on the day on which the cheque was received by HMRC and references in those regulations to “pay”, “paid”, “unpaid” and “overpaid” are to be interpreted on this basis.

Cessation of employment

67

Where an employer completes a Form P45, the employer must state in it that the employee is a borrower if, on the date of the Form P45—

• (a) the employer has received notice that the employee is a borrower as described in regulation 49(1); ...

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (ba) the employer has received information under regulation 43 that the employee has any liability to repay any student loan ...; and

• (c) if paragraph (a) or (ba) apply, the employer has not received a notice from HMRC under regulation 49(3) requiring the employer not to make deductions from the employee’s earnings on and after a date before the date on which the person ceased to be an employee.

Penalties

68

• (1) ... Where in the case of any employee an employer fraudulently or negligently—

• (a) makes incorrect deductions; or

• (b) makes or receives incorrect payments in a tax year

in pursuance of this Part, the employer is liable to a penalty not exceeding £3000 for each employee for whom incorrect deductions or payments are made.

• (2) A penalty under paragraph (1) must not be imposed before the end of the relevant tax year; and no more than one penalty per employee under that paragraph may be imposed in relation to any tax year.

• (3) Schedule 56 to the Finance Act 2009 (penalty for failure to pay tax) shall apply in relation to the late payment from an employer to HMRC of ... repayments deducted from an employees’ earnings as if—

• (a) in relation to all regulations in this Part other than regulation 62 payment from an employer to HMRC were a payment of tax falling within item 2 of the table in paragraph 1 of that Schedule;

• (b) in relation to regulation 62 payments from an employer to HMRC were a payment of tax falling within items 17, 23 or 24 of the table in paragraph 1 of that Schedule;

• (c) references to the PAYE Regulations in item 2 of the table in paragraph 1 of that Schedule were references to this Part.

• (4) For tax years commencing on or after 6 April 2014, where the date on which the return is due to be filed is on or after 6 April 2014, where a Real Time Information employer—

• (a) carelessly or deliberately makes an incorrect return under regulations 59B or 59E; and

• (b) the return contains an inaccuracy which amounts to, or leads to–

• (i) an understatement of liability under this Part to make payments to HMRC; or

• (ii) false or inflated claim for the recovery of payments made to HMRC under this Part,

penalties as set out in Schedule 24 to the Finance Act 2007 (penalties for error) will apply as they apply in connection with a return for the purposes of the PAYE Regulations.

Collection and recovery of penalties

69

Section 69 of the 1970 Act (recovery of penalties etc) applies to penalties imposed under this Part as it applies to penalties imposed under that Act, but does not apply to penalties under regulation 59(8)(b)⁴¹.

Application of the PAYE Regulations

70

To the extent that the provisions of the PAYE Regulations apply by virtue of regulation 42 for the purposes of these Regulations, the PAYE Regulations will apply as if in regulation 210 (penalties and appeals) an employer is not liable to a penalty if the employer has been liable to a penalty for failing to comply with regulation 205 of those Regulations or regulation 90N of the Contributions Regulations in relation to the same tax year.

PART 5 — Repayment of plan 1, 2, 3 and 5 loans by Overseas Borrowers

Interpretation

71

In this Part—

• “borrower” means a borrower who has a plan 1, 2, 3 or 5 loan;

• “gross income” means income from all sources before deductions for or relief from tax or other statutory charge;

• ...

• ...

Notice of overseas residence

72

• (1) A borrower must notify the Authority of any period of residence outside the United Kingdom which exceeds 3 months.

• (2) A borrower must provide such information about the borrower’s income during any such period of residence as the Authority may require.

Notice of liability to make repayments

73

• (1) Subject to regulation 75, where the Authority is satisfied that a borrower is resident outside the United Kingdom, it may serve a notice on the borrower requiring the borrower to make repayments on a plan 1, 2, 3 or 5 loan in accordance with regulation 74.

• (2) In a notice served under paragraph (1), the Authority may require a borrower, if the borrower has failed—

• (a) to give the notice required by regulation 72(1); or

• (b) to provide any information required by the authority under regulation 72(2),

to repay immediately such part of the loan as will reduce the amount outstanding to the amount which the Authority considers would have been outstanding if the borrower had given the notice or provided the information required.

Repayment by fixed instalments

74

• (1) A borrower must pay to the Authority a fixed instalment ...—

• (a) no later than the day specified in a notice served under regulation 73; and

• (b) no later than the same day of each subsequent month.

• (2) The amount of the fixed instalment is the product of—

• (a) the fixed instalment rate for the borrower’s loan, and

• (b) the country-specific multiplier for the borrower’s country of residence.

• (3) The fixed instalment rate for a plan 1, 2, 3 or 5 loan is calculated in accordance with regulation 74A.

Repayment by income-related instalments

75

• (1) Where the Authority is satisfied that a borrower to whom regulation 73 applies has complied with a requirement to provide information under regulation 72, the Authority may determine that the borrower may repay a loan by income-related instalments in accordance with this regulation.

• (2) The first such instalment must be paid on a date determined by the Authority being a date not more than 2 months later than the date of the determination and subsequent instalments must be paid on the same date in each subsequent month for up to 12 months.

• (3) The Authority must determine the amount of each instalment and must ensure that the total amount of all instalments paid in the period up to 12 months from the date of the first instalment referred to in paragraph (2) must not exceed the relevant amount.

• (4) The relevant amount is—

• (a) in relation to a plan 1, 2 or 5 loan, 9%, and

• (b) in relation to a plan 3 loan, 6%,

of the gross income which the Authority considers the borrower is likely to receive in the next 12 month period following the date of the determination referred to in paragraph (2).

• (4A) In calculating the relevant amount, the Authority must disregard—

• (a) income up to the applicable threshold, calculated in accordance with regulation 75A; and

• (b) income in respect of which it is satisfied that repayments are likely to be made under Part 3 or 4.

• (4B) The relevant amount in paragraph (4)(b) is additional to and concurrent with any repayment under paragraph (4)(a).

• (5) The amount of each instalment must be stated in the determination.

• (6) At the end of the period referred to in paragraph (2), the borrower must pay fixed instalments under regulation 74, subject to a further determination under paragraph (1).

• (7) At any time during the period referred to in paragraph (2), the Authority may make a re-determination under paragraph (1).

Calculation of fixed instalment and applicable threshold

76

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application to cease repayment by instalments

77

• (1) A borrower who—

• (a) is required to make repayments of a loan under this Part; and

• (b) who has not been required to repay the loan in full immediately under regulation 78,

may apply to the Authority for a determination that the borrower is no longer required to make such repayments.

• (2) Where the Authority is satisfied that—

• (a) the borrower is resident in the United Kingdom; and

• (b) the borrower is likely to be resident in the United Kingdom for the tax year during which the date specified in the determination relating to that borrower will fall,

the Authority may determine that a borrower who has applied under paragraph (1) is not to be required to make repayments under this Part from a date specified in the determination, being a date not more than 2 months later than the date of the determination.

• (3) A determination under paragraph (2) has effect until the borrower again becomes liable to repay the loan under regulation 74 or 75.

Foreclosure

78

If a borrower does not pay an instalment or other amount when it is due, the Authority may require the borrower to repay the loan in full immediately.

Costs and expenses of the Authority

79

• (1) Where the Authority incurs reasonable costs or expenses in taking steps—

• (a) resulting from a borrower’s failure to comply with regulation 72, to

• (i) obtain a borrower’s address outside the United Kingdom; or

• (ii) obtain information about a borrower’s income during any period of residence outside the United Kingdom;

• (b) to serve a notice under regulation 73(1) in any of the circumstances set out in regulation 73(2); or

• (c) to recover the outstanding balance of the loan in full under regulation 78,

the Authority may require reimbursement of those costs or expenses by the borrower and may add them to the borrower’s loan account and they will form part of the principal of the loan from the date on which they are added.

• (2) Where the Authority incurs such costs and expenses as are referred to in paragraphs (1)(a) to (c) in respect of a transferred loan, the Authority is entitled to recover such costs as are incurred on behalf of the loan purchaser and may add them to the borrower’s loan account.

• (3) Any sum added to the borrower’s loan account in accordance with paragraph (2) is owed to the loan purchaser.

PART 6 — Insolvency in relation to plan 1, 2, 3 and 5 loans

Effect of borrower insolvency on student loans and postgraduate... degree loans

80

• (1) In this Part, “eligible student” means any person who is an eligible student—

• (a) in England, for the purposes of the Education (Student Support) (No 2) Regulations 2008 or any subsequent Regulations made under section 22 of the 1998 Act;

• (b) in Wales, for the purposes of the Assembly Learning Grants and Loans (Higher Education) (Wales) Regulations 2008 or any subsequent Regulations made under section 22 of the 1998 Act; or

• (c) In Northern Ireland, for the purposes of the Education (Student Support) Regulations (Northern Ireland) 2008⁴² or any subsequent Regulations made under the Education (Student Support) (Northern Ireland) Order 1998.

• (2) In England and Wales—

• (a) any sum payable to an eligible student by way of a plan 1, 2, 3, or 5 loan which the eligible student receives or is entitled to receive after the commencement of that person’s bankruptcy, will not be treated as part of the bankrupt’s estate or claimed for the bankrupt’s estate under section 307, 310 or 310A of the Insolvency Act 1986⁴³, whether the entitlement arises before or after the commencement of the bankruptcy; ...

• (b) any debt or liability to which that person is or may become subject in respect of any sum payable to an eligible student by way of a plan 1, 2, 3, or 5 loan will not be included in that person’s bankruptcy debts ....

• (c) any sum payable to an eligible student by way of a plan 1, 2, 3, or 5 loan which the eligible student receives or is entitled to receive before or after the approval of that person’s individual voluntary arrangement under Part 8 of the Insolvency Act 1986 will not be treated as part of any arrangement approved under section 258 or 263D of that Act, whether the entitlement arises before or after the approval of the arrangement; and

• (d) any debt or liability to which that person is or may become subject in respect of any sum payable to an eligible student by way of a plan 1, 2, 3, or 5 loan will not be included in that person’s individual voluntary arrangement ....

• (3) In Northern Ireland—

• (a) any sum payable to an eligible student by way of a plan 1, 2, 3, or 5 loan which the eligible student receives or is entitled to receive after the commencement of that person’s bankruptcy, will not be treated as part of the bankrupt’s estate or claimed for the bankrupt’s estate under Article 280, 283 or 283A of the Insolvency (Northern Ireland) Order 1989⁴⁴, whether the entitlement arises before or after the commencement of the bankruptcy; ...

• (b) any debt or liability to which that person is or may become subject in respect of any sum payable to an eligible student by way of a plan 1, 2, 3, or 5 loan will not be included in that person’s bankruptcy debts ....

• (c) any sum payable to an eligible student by way of a plan 1, 2, 3, or 5 loan which the eligible student receives or is entitled to receive before or after the approval of that person’s individual voluntary arrangement under Part 8 of the Insolvency (Northern Ireland) Order 1989 will not be treated as part of the individual voluntary arrangement approved under articles 232 or 237D of that Order, whether the entitlement arises before or after the approval of the arrangement; and

• (d) any debt or liability to which that person is or may become subject in respect of any sum payable to an eligible student by way of a plan 1, 2, 3, or 5 loan will not be included in that person’s individual voluntary arrangement ....

SCHEDULE 1

Regulations revoked	References
The Education (Student Loans)(Repayment) Regulations 2000	S. I. 2000/944
The Education (Student Loans) (Repayment) (Amendment) Regulations 2001	S.I. 2001/971
The Education (Student Loans) (Repayment) (Amendment) Regulations 2002	S.I. 2002/2087
The Education (Student Loans) (Repayment) (Amendment) (No. 2) Regulations 2002	S.I. 2002/ 2859
The Education (Student Loans) (Repayment) (Amendment) Regulations 2004	S.I. 2004/1175
The Education (Student Loans) (Repayment) (Amendment) (No. 2) Regulations 2004	S.I. 2004/2752
The Education (Student Loans) (Repayment) (Amendment) Regulations 2005	S.I. 2005/2690
The Education (Student Loans) (Repayment) (Amendment) Regulations 2006	S.I. 2006/2009
The Education (Student Loans) (Repayment) (Amendment) Regulations 2007	S.I. 2007/1683
The Education (Student Loans) (Repayment) (Amendment) (Wales) Regulations 2007	S.I 2007/3509 (W. 308)
The Education (Student Loans) (Repayment) (Amendment) Regulations 2008	S.I. 2008/546
The Education (Student Loans) (Repayment) (Amendment) (No. 2) Regulations 2008	S.I. 2008/2715

Signed

David Lammy — Minister of State — Department for Innovation, Universities and Skills — 1st March 2009

Jane E. Hutt — One of the Welsh Ministers — Minister for Children, Education, Lifelong Learning and Skills — 23rd February 2009

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations revoke and re-enact with amendments the Education (Student Loans) (Repayment) Regulations 2000. Like those Regulations, these Regulations govern repayments of student loans by borrowers who have taken out income- contingent repayment loans for courses which began any time in or after September 1998. Students who began their courses before then, and certain limited, transitional categories of students who began their courses shortly after then (for example, gap year students) remain subject to the previous system of mortgage-style loans for maintenance under the Education (Student Loans) Act 1990.

These Regulations set out the principal terms and conditions applying to repayments of income-contingent student loans in England and Wales.

These Regulations are Composite Regulations made by the Secretary of State as respects England and by the Welsh Ministers for Wales. The Secretary of State also makes various provisions for the tax system which apply across the United Kingdom to the extent that student loans are collected through the taxation system operated by Her Majesty’s Revenue and Customs (known in the Regulations as ‘HMRC’) and to the extent these consist of rights or obligations imposed on HMRC, employers or borrowers as part of that tax provision, or on others in respect of the inspection or production of information and records. In general, the Secretary of State and Welsh Ministers are referred to in these Regulations as ‘the Authority’.

This consolidating Instrument also brings together for the first time other provisions which concern repayments of student loans but which were previously found elsewhere in Regulations under section 22 of the Teaching and Higher Education Act 1998, namely provisions relating to the interest which may be charged on the loans during repayment and the effect of bankruptcy on a student’s entitlement to the loan, or obligation to repay it. Those other relevant regulations are revoked by these Regulations.

The majority of the provisions of these Regulations come into force on 6 April 2009. Provisions relating to the interest payable on loans and the insolvency provisions in Part 6 come into force on 1 September 2009. Provisions relating to repayment by direct debit come into force on 21 December 2009.

Under these Regulations, repayments will be made by borrowers in four ways:

• (c) through HMRC through the tax self-assessment process;

• (d) by deductions from salaries and other employment-related payments by employers, which are paid directly to HMRC by employers;

• (e) by direct payments to the Secretary of State or Welsh Ministers, either as voluntary repayments or where borrowers are living and working abroad; or

• (f) by direct debit payments to the Secretary of State or Welsh Ministers, within the last two years of the loan’s repayment term.

Borrowers can make direct payments to the Secretary of State, Welsh Ministers, or a loan purchaser at any time. Repayment by direct debit in the last 23 months of repayment for borrowers in England and Wales enables a borrower to manage repayments so as not to risk overpayment through the tax system, and represents a change from the previous system. A borrower may notify the Secretary of State or Welsh Ministers of a desire to repay the remainder of their loan by fixed instalments. Subject to certain exceptions and conditions the Secretary of State or Welsh Ministers will agree.

Part 1sets out the main definitions applying to the Regulations and deals with the application of the Regulations to the different parts of the United Kingdom. It also deals with how notices and communications required or permitted under the Regulations may be made or given. Parts 1 and 2 of the Regulations extend to both England and Wales. However, Parts 3 and 4 only apply to Wales if the Welsh Ministers determine that student loan repayments are to be made through the tax system and give notice of this to the Secretary of State in respect of student loans collectively, or individually. If Parts 3 and 4 are not applied by Welsh Ministers, those regulations in Part 2 which also relate to repayments through the tax system will also cease to apply.

These Regulations do not extend to Scotland other than to the extent that they may impose requirements or rights on employers, borrowers, loan purchasers or HMRC anywhere in the United Kingdom in relation to repayments of student loans governed by these Regulations.

The Scottish Ministers may, if they determine, give notice to HMRC that they wish repayments of student loans made under the Education (Scotland) Act 1980 to be collected through the tax system, and in those circumstances Parts 3 and 4, and any necessary provisions of Part 2 will also apply to those loans.

Part 2makes provisions which apply to all loans made by the Secretary of State and to loans made by the Welsh Ministers, though some aspects will not apply in relation to Wales if Welsh Ministers do not determine to collect student loan repayments through the tax system.

This Part sets out the functions of HMRC in relation to monies collected by it, how the penalty regime set out in the Taxes Management Act 1970 will be applied to the repayments system and how repayments of loans sold to private sector bodies (known in the Regulations as ‘loan purchasers’) will be dealt with (regulations 10-13).

It sets out how repayments made by borrowers will be applied to outstanding penalties, charges, costs, interest and principal (regulation 14). Borrowers do not become liable to repay any loan until the April after they have completed or left their courses. A borrower may, however, repay a loan at any point if the borrower wishes to.

The Secretary of State or Welsh Ministers must notify the borrower and HMRC of the dates when loan repayments are to start and cease (regulation 15). A borrower’s liability to repay a student loan will end only if the loan is cancelled, the loan is repaid in full or if specified other events occur. Different provision is made for eligible teachers who qualify under the Education (Teacher Student Loans) (Repayment etc) Regulations 2003 (regulation 16).

Repayments made directly to the Secretary of State, to Welsh Ministers, or by direct debit are credited to a borrower’s account on the date of receipt. Repayments made through self-assessment are credited to the borrower’s account on 31 January in the tax year following the tax year for which those repayments are due. Repayments made through PAYE are deemed paid in 12 equal amounts across the year (regulation 17).

A borrower may repay through direct debit at the end of the life of their loan to prevent over-repayment through the tax system if they request it, and previous attempts at payment by this method have not failed as a result of the direct debit being refused or cancelled without permission. A borrower can agree to re-enter the PAYE system at any time (regulation 18).

Loans are cancelled when a borrower dies, is permanently disabled or reaches the age of 65. In relation to post -2006 student loans, the cancellation at age 65 is replaced with cancellation after 25 years (regulation 19).

If a borrower repays more than is owed to the Secretary of State or Welsh Ministers, any over-payment is repaid. Over-payment through PAYE is repaid with interest at the same level as is applied to the loans by the Secretary of State or Welsh Ministers (regulation 20).

The loans may carry interest which is applied daily at a rate of interest set by the Secretary of State from year to year, and which (if interest is charged) is equivalent to the Retail Prices (All items) Index for the 12 months to March preceding the beginning of the academic year in September (subject to an overall ‘low interest’ cap imposed by consumer credit legislation). The Secretary of State and Welsh Ministers must publish the rate annually (regulation 21). These interest provisions were previously contained in the annual Education (Student Support) Regulations and the Welsh equivalent. Such interest provisions contained in those Regulations are revoked in these Regulations.

The Secretary of State or Welsh Ministers may require the borrower to provide information about their name, address, personal details and income and may apply penalties to the borrower if the borrower fails to comply with these requirements (regulations 22-27). In addition to specific penalties for failing to comply, if the Secretary of State or Welsh Ministers incur any costs or expenses, whether on their own account or on behalf of a loan purchaser, in obtaining information which the borrower is required to provide, they may recover those costs and expenses and add them to the balance of the loan outstanding to its owner (regulation 25). The Regulations may also require the borrower to repay the loan in full, immediately, if the borrower fails to comply with the obligations to provide information or pay penalties (regulation 27).

Part 3deals with repayment of student loans through the self-assessment system for borrowers required to submit a self- assessment tax return. Provisions of the Taxes Management Act 1970 dealing with payment of income tax through self-assessment are extended to cover repayment of student loans, and loan repayments through self-assessment are treated like income tax.

The borrower repays 9% of total annual income over £15,000 including any unearned income over £2000. Certain exclusions and reliefs are applied to the calculation of the borrower’s income for these purposes (regulation 29).

Borrowers repaying through self-assessment must include information on student loan repayments in their annual return, and HMRC can request further information, accounts and documents as they can in relation to income tax. Borrowers make repayment by 31 January in the tax year following the relevant tax year, unless other requirements about a borrower’s return are imposed (regulation 35). The borrower may be liable to surcharges, interest and penalties as would apply to income tax, if the borrower’s return is missing, late, incomplete, misleading or if the borrower makes late or incomplete repayments.

Part 4 deals with how borrowers who are employees repay student loans through their employers. Loan repayments are collected and accounted for by employers in the same way as income tax is deducted from an employee’s earnings, and earnings has the same meaning as it does for National Insurance contributions purposes. Employers can therefore calculate repayments on the same sum as they calculate National Insurance contributions. Repayment is made at the rate of 9% of annual earnings over £15,000 or the proportionate part of it, depending on the pay period. Employers can calculate the value of the deduction themselves or use Tables provided by the Secretary of State or Welsh Ministers for this purpose (regulation 44). The rules on aggregating earnings and for determining earning periods, where an employee has more than one employment with a single employer is the same for student loans as it is for National Insurance contributions. Where an employer adopts practices to avoid or reduce the amount of student loan repayments, HMRC may give directions to ignore those practices (regulation 45).

HMRC may notify anyone who to their knowledge is an employer of a borrower and require that employer to make deductions from the employee’s earnings, and pay them to HMRC (regulation 49). The notice will apply from the first available pay date on or after that notice, and apply up until the date specified in a subsequent notice requiring the employer to cease making deductions (regulation 50). The employer is given directions as to how such deductions from the employee’s earnings rank against other deductions that the employer may be required to make (regulation 51), and specifies when and how student loan repayments must be paid to HMRC (regulation 54). HMRC may require an employer to render a return in respect of all employees detailing the repayments which the employer is liable to deduct, and may certify sums owing in respect of them whether HMRC is unaware of sums which may be owed by that employer (regulation 55) or has reason to believe that the employer is liable to pay repayments to HMRC (regulation 56). HMRC may require employers to pay interest on student loan repayments which are not made to HMRC at the right time (regulation 58). HMRC may recover any sums owing by employers as though they were income tax and may recover student loan repayments in the same cause of action as outstanding National Insurance contributions or tax (as part of a ‘combined amount’ (regulation 57)). For tax years commencing on or after 6 April 2009 those penalties provided for in Schedule 24 to the Finance Act 2007 will apply to employers who carelessly or deliberately submit incorrect returns, in place of the previous regime (regulation 59). Powers to inspect records and obtain information contained in Schedule 36 to the Finance Act 2008 will now apply (with modifications) in relation to a borrower’s compliance with Part 3 (regulation 33) and an employer’s compliance with Part 4 (regulations 60 and 61). The Regulations also provide for HMRC to formally determine, and certify, any sums which it appears are outstanding to HMRC from employers in respect of student loan repayments. Interest may also be charged on these sums formally determined (regulations 62 and 63).

If an employer dies, or the business is transferred to another person, the personal representative or successor will be liable, in general, to do anything which the original employer was liable to do under these Regulations (regulations 64-65).

Where an employee leaves an employment, the employer must state in that employee’s Form P45 that the employee is a borrower provided that the employer had received a notice stating that the employee is liable to make repayments, and had not also subsequently received a notice requiring the employer not to make deductions before the employee left the employment (regulation 67).

An employer who either fraudulently or negligently makes incorrect deductions or makes or receives incorrect payments in a tax year for an employee is liable to a penalty of £3000 per each such employee per tax year in respect of whom the fraudulent or negligent behaviour has occurred (regulation 68). Penalties under Part 4 may be recovered by HMRC in the same way as income tax (regulation 69). Various provisions of the PAYE Regulations are applied to collections with certain modifications (regulation 70).

Part 5provides for repayment by borrowers who are not resident in the UK for income tax purposes. Borrowers must tell the Secretary of State or Welsh Ministers if they are overseas for more than 3 months, and provide other details (including income levels) if requested to by the Secretary of State or Welsh Ministers. The Secretary of State or Welsh Ministers may require a borrower resident overseas to make repayments by way of fixed instalments each month (regulation 75) and, if a borrower has failed to provide necessary notices or information, may require the borrower to make such repayment as will reduce the amount outstanding on the loan to the level it would have been had the borrower given the notice or provided the information (regulation 73).

A borrower who has provided the necessary information to the Secretary of State or Welsh Ministers about residence overseas and income levels may apply to the Secretary of State or Welsh Ministers (as appropriate) to make repayments by way of income-related instalments, and if the Secretary of State or Welsh Ministers agree, the repayments must be at the rate of 9% of gross income which the Secretary of State or Welsh Ministers consider the borrower is likely to receive in the next 12 months, disregarding any income below the applicable threshold or on which payment will be made through the UK tax system (regulation 75). The applicable threshold varies according to where in the world the borrower is and the level of the price level index for that country determined by Eurostat or the World Bank (regulation 76). A borrower may apply to the Secretary of State or Welsh Ministers to cease making repayments by instalments if they become resident in the UK and have not been required to repay the loan in full immediately under regulation 78 (regulation 77).

A borrower failing to make repayment of any instalment or sum which is due may be required by the Secretary of State or Welsh Ministers to make immediate repayment of the outstanding balance of the loan (regulation 78).

If the Secretary of State or Welsh Ministers incur any costs or expenses, whether on their own account or on behalf of a loan purchaser in obtaining information about a borrower’s location, details and income abroad, or in obtaining payment of the whole of the outstanding loan, they may recover those costs and expenses and add them to the balance of the loan (regulation 79).

Part 6re-enacts provisions previously contained in the Student Support Regulations concerning insolvency of borrowers. This provides that in relation to borrowers in England and Wales, and Northern Ireland, sums by way of student loans which are received or to which a borrower is entitled after their bankruptcy, do not form part of their estate for the purposes of that bankruptcy. In England and Wales, any debt which a student loan borrower owes to the Secretary of State, Welsh Ministers or loan purchaser does not at any time form part of the debts of that borrower for the purposes of the bankruptcy, if the bankruptcy commences on or after 1 September 2004. If the bankruptcy commences prior to that date, only sums received or entitled to be received by the borrower prior to the commencement of the bankruptcy will form part of the bankrupt’s debts in the bankruptcy.

Similar provisions are applied to Northern Ireland, except that the relevant date for determining whether student loan debts incurred prior to the bankruptcy form part of the debts of the bankruptcy is 1 March 2005.

An impact assessment has not been prepared in respect of this instrument as it has no impact on the costs of business, charities or voluntary bodies. The impact on the public sector is minimal.

Footnotes