The law requires parents and carers to make sure that their children receive a full-time education suitable to their needs. As a last resort, schools may request that the local authority, through the Attendance Team, uses its statutory legal powers to address poor school attendance levels.
Unauthorised non-attendance
The legislation underpinning the statutory functions of the Local Authority (LA) for school attendance of children of compulsory school age is contained in the following Acts.
Duty of parents and carers
Section 7 of the Education Act 1996 lays a duty on parents to ensure that their child receives an efficient, full-time education, which is suitable to their age, ability, aptitude and any special needs that they may have. Parents may be prosecuted if they fail to ensure their child receives an education.
The following sections apply:
- Section 444(1) - This states that it is an offence if “a child of compulsory school age who is a registered pupil fails to attend regularly” at the school. The disposal in respect of this offence is level 3 (a fine of up to £1000 per parent).
- Section 444(1A) - This is an ‘aggravated offence’. The Act states that it is an offence if “a child of compulsory school age did fail to attend regularly and that “the parent knows that his child is failing to attend regularly at the school and fails to cause him to do so” without reasonable justification. The disposal in respect of this offence stands at level 4 (a fine of up to £2500 per parent and/or up to 3 months imprisonment).
The only grounds for challenge / statutory defences in law to an offence under Section 444 are:
- The child was absent for medical reasons (parents/carers should obtain medical evidence to cover the periods of absence);
- The LA failed to provide transport when required to do so;
- The absences were due to religious observance;
- Permission was granted by the school or there was unavoidable cause.
School Attendance Orders
Section 437 - This section is concerned with a child of compulsory school age who is not on a school roll. If the LA is not satisfied that the child is receiving suitable education either by regular attendance at school or otherwise, a School Attendance Order will be served on the parent requiring him/her to cause the child to become a registered pupil at a school named in the Order.
Parenting Orders
Section 8 of the Crime & Disorder Act 1998 makes provision for the courts to impose a Parenting Order, along with other available disposals, in proceedings for non-school attendance. Such an Order requires parents to attend parenting guidance/counselling classes over a specified period of time and could also include specific conditions (e.g. the requirement to escort their child to school each morning).
Education Supervision Orders (ESO)
The Children Act 1989 makes provision for the LA to consider, in all non school attendance legal proceedings, whether it is appropriate to apply to the Family Proceedings Court for an ESO as a means of attempting to ensure a child’s regular school attendance. This application would be made separately to any prosecution in relation to non school attendance.
An ESO is made in respect of a child and allows the LA to provide support and give directions to a child and his/her parents in order to make sure that the child attends regularly.
Penalty Notices for unauthorised absence from school
1. Legal basis
Section 23 of the Anti-Behaviour Act 2003 empowers designated local authority (LA) officers, Headteachers (Deputy and Assistant Headteachers authorised by them) and the police to issue penalty notices in cases of unauthorised absence from school, as an alternative to prosecution in the Magistrates Court for non-school attendance.
The Education Penalty Notices (England) Regulations 2004 came into force on 27 February 2004 - the Penalty Notices supplement the existing sanctions currently available under Section 444 Education Act 1996 or Section 36 Children Act 1989 to enforce attendance at school where appropriate.
In law, an offence occurs if parents fail to secure their children’s attendance at school and that absence is not authorised by the school.
The issuing of penalty notices must conform to all requirements of the Human Rights Act and equal opportunities legislation, and be based on clear threshold criteria which will need to be applied consistently and equitably across the county's schools. The LA has the prime responsibility for developing the protocol within which all partners named in the act will operate.
The issuing of penalty notices will be based on clear threshold criteria which will need to be applied consistently and equitably across the county's schools. Any person authorised to issue a notice in Leicestershire must comply with the guidance set out in this code of conduct.
The Attendance Team delivers this LA responsibility.
2. Rationale
Parents and pupils are supported at school and LA level to overcome barriers to regular attendance through a wide continuum of assessment and intervention strategies.
Sanctions of any nature are for use only where parental co-operation in this process is either absent or deemed insufficient to resolve the presenting problem.
Sanctions are never used as a punishment, only as a means of enforcing attendance where there is a reasonable expectation that their use will secure an improvement.
Schools and parent are advised to consult the current government guidance Working together to improve school attendance (GOV.UK).
3. Legal practicalities
As of the 1st September 2013, the full penalty of £120 per parent per child is imposed, but if paid within 21 days of receipt of the notice the amount payable is £60 per parent.
If the notice has not been paid in full by 28 days of receipt the council must either prosecute for the offence or withdraw the notice.
This prosecution is for the offence of failing to secure attendance at school not for non-payment of the fine. Prosecutions are brought under Section 444 Education Act 1996.
Withdrawal of the notice can only take place in very limited circumstances as set out in this code of conduct.
4. Who may issue a penalty notice
A Penalty Notice may only be issued by Authorised LA staff. In Leicestershire this will be members of the Attendance Team.
Headteachers and school staff authorised by them (this is limited by regulation to deputy and assistant heads) but may request the Attendance Team to issue a notice, however the Attendance Team will need to consider their own protocol and recent government guidance, along with the circumstances of the matter, when considering such a request.
A police officer during a truancy sweep under the provision of the Crime and Disorder Act 1998 may request the Attendance Team to write a notice.
5. Circumstances for issuing a penalty notice
A penalty notice can only be issued in cases of unauthorised absence. It would be considered appropriate to serve a notice in the following circumstances:
- overt truancy
- parentally condoned absences
- unauthorised leave of absence / holidays in term-time
- excessive delay in returning from extended holidays without agreement
- persistent late arrival at school i.e. after the register has closed.
A penalty notice may be issued if:
- a registered pupil has been absent for more than 20 sessions in any six week period, and
- the LA is satisfied that there is sufficient evidence to show the parent has committed an offence under Section 444(1) Education Act 1996, and
- a formal warning of the possibility of a penalty notice being issued has been served giving a maximum of 15 school days to effect an improvement, and
- 2 penalty notices have not been issued in the past 12 months in respect of the child in question (if so alternative processes are necessary).
6. Withdrawal of a penalty notice
Once issued a penalty notice may only be withdrawn by the LA in the following circumstances:
- proof has been established that the Penalty Notice has been issued to the wrong person
- The notice ought not to have been issued i.e. where it has been issued outside the terms of this code of conduct or no offence has been committed.
7. Representation
There is no statutory right of appeal against the issuing of a penalty notice.
The parent will be advised, when they receive the warning that they may make representation to the Head teacher and/or the Governing Body, setting out reasons why they should not be issued.
8. Payment of penalty notice
Arrangements for payment will be detailed on the penalty notice. Generally, arrangements will be in place to allow for either personal payment at an office address or by post.
Payment of the notice discharges the parent's liability for the period in question and they cannot be subsequently prosecuted under other enforcement powers for the period covered by the notice.
The LA retains any revenue from any penalty notice to cover enforcement costs. It is unlikely that revenue will be greater than enforcement costs.
If revenue is greater than enforcement costs that sum is held by central government.
9. Non-payment of penalty notice
Non-payment of a penalty notice will result in the withdrawal of the notice and will trigger the fast-track prosecution process under the provisions of Section 444 Education Act 1996.
Penalty Notice referral form for schools
We have gone paperless with referrals
In order for this to work, we require all referrals to be sent electronically, using the online referral link below:
Please note that all sections are mandatory.
Referral Guidance - How to refer to the Attendance Team
If you are referring for a holiday or an unauthorised abscence of leave, and you are aware that the parent has been fined before, please state this in the appropriate section as it reduces the process time considerably.
Code of Conduct Opens new window
School Attendance Guidance (GOV.UK)
Statutory guidance on supporting pupils at school with medical conditions