The law requires parents and carers to make sure that their children receive a full-time education suitable to their needs.
The role of school staff is to ensure that the school is a calm, safe, and supportive environment where all pupils want to be and are keen and ready to learn, which is the foundation of securing good attendance.
Where all voluntary support options are unsuccessful or are not appropriate (e.g. an unauthorised holiday in term time) a school can liaise with Attendance Team to take forward attendance legal intervention to formalise support and/or enforce attendance.
All schools are urged to consult the Attendance Team Guidance which provides detailed advice in relation current guidance and expectations for schools in respect of attendance.
School staff should also consult the government guidance Working Together to Improve Attendance (applies from 19 August 2024) to ensure they are acting in accordance with the guidelines as a school.
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.
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 19 August 2024, the full penalty of £160 per parent per child is imposed, but if paid within 21 days of receipt of the notice the amount payable is £80 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 when a school becomes aware that the national threshold has been met, they must consider whether a penalty notice can and should be issued or not. The national threshold has been met when a pupil has been recorded as absent for 10 sessions (usually equivalent to 5 school days) within 10 school weeks, with one of, or a combination of the following codes:
(a) code G (the pupil is absent without leave for the purpose of a holiday),
(b) code N (the circumstances of the pupil’s absence have not yet been established),
(c) code O (none of the other rows of Table 3 in regulation 10(3) of the School Attendance (Pupil Registration) (England) Regulations 2024 applies), and
(d) code U (the pupil attended after the taking of the register ended but before the end of the session, where no other code applies)
For each case, a school should ask "Is support appropriate for the particular cause (or causes) of absence?"
- If yes, staff should weigh up the specific circumstances of the case and decide which available tool is most likely to change behaviour and improve attendance. Either: continue or provide support without a Penalty Notice or Notice to Improve (e.g. where a parent is engaging well in the support, or other supportive routes could be tried); issue a Notice to Improve and continue to provide support (e.g. where a parent is not engaging well in support); issue a penalty notice (e.g. where a parent has already had a Notice to Improve and not engaged in support), subject to the further considerations.
- If no, a penalty notice should be issued (e.g. a holiday in term-time) subject to the further considerations as set out in the Code of Conduct (link below).
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.
- The Penalty Notice has been sent to the wrong address and has not been received by the parent.
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. The majority of Penalty Notices are now paid online.
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 prosecution process under the provisions of Section 444 Education Act 1996. The matter will be referred to the Magistrates Court to be dealt with under the Single Justice Procedure.
10. Making a referral to the Attendance Team
We require all referrals to be sent electronically, using the online referral link below.
Schools are advised to refer to our Attendance Team Guidance and Checklist before making a referral to the team:
Schools are also advised to consult the Code of Conduct and Protocol to ensure that they are acting in accordance with the guidance:
Attendance Team Code of Conduct (PDF)
Attendance Team online referral
Please note that all sections are mandatory.