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School absence penalty notices: Code of conduct

Devon County Council Local Code of Conduct (Revised March 2023) Penalty Notices

For unauthorised irregular attendance at school or exclusion from school.

The Education (Penalty Notice) (England) Regulations 2007
As amended by The Education (Penalty Notices) (England) (Amendment) Regulations 2012
And the Education (Pupil Registration) (England) Regulations 2013

It is a legal requirement under section 7 of the Education Act 1996 that parents of children of compulsory school age ensure that their children receive full-time education that is suitable to their age, ability and aptitude and to any special educational needs that they may have.

A child reaches compulsory school age at the start of the term on or after their fifth birthday and continues to be of compulsory school age until the last Friday of June in the school year when they reach 16 years old. Notices cannot therefore be issued to children in reception who have not yet reached compulsory school age.

1. Rationale and overview of penalty notices

The purpose of this code of conduct is to ensure that penalty notices are applied consistently and fairly across the Local Authority (LA) area and that arrangements for their issue and administration are suitable.

1.1 This code has been issued pursuant to The Education (Penalty Notices) (England) Regulations 2007/1867 (as amended) and applies to all schools and academies in Devon (except for independent schools). All references to the LA mean Devon County Council.

1.2 Penalty notices are an alternative to prosecution. They give parents the opportunity to discharge their liability in respect of the following two offences by paying a penalty:

  • Education Act 1996, section 444(1): failure by a parent to secure regular attendance at school of a registered pupil.
  • Education and Inspections Act 2006, section 103: duty of a parent of an excluded pupil to ensure the pupil is not present in a public place at any time during school hours on a school day.

1.3 Penalty notices are not the only means of disposal for these offences. Depending on the circumstances of each case, the LA may alternatively decide to issue a caution, or prosecute the offence in a magistrates’ court, or take no further action.

1.4 It is important that decisions about these offences are made in accordance with the Human Rights Act 1998 and the Equality Act 2010 as well as specific relevant legislation, regulations and statutory guidance. Therefore, in Devon, the agreed practice is that all penalty notices will be issued by the LA.

2. Who is a parent?

The LA and the school will need to decide who falls within the definition of parent in respect of a particular pupil when using the legal measures. A penalty notice may be issued to each parent for each child. The definition of a parent in education law is broader than the definition in other legislation.

2.1 For the purposes of education law, section 576 of the Education Act 1996 defines a ‘parent’ as:

  • all natural (biological) parents, whether they are married or not
  • any person who, although not a natural parent, has parental responsibility for a child or young person (this could be a stepparent, guardian or other relative)
  • any person who, although not a natural parent, has care of a child or young person (a person has care of a child or young person if they are the person with whom the child lives and who looks after the child, irrespective of what their relationship is with the child)

3. Circumstances where a penalty notice may be issued

3.1 Irregular school attendance

3.1.1 If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence. (Section 444 Education Act 1996). The Supreme Court Judgement from 2017 (Isle of Wight Council v Platt [2017] UKSC 28) has determined that ‘regular’ means ‘in accordance with the rules prescribed by the school’.

3.1.2 Regular and punctual attendance of pupils at school is both a legal requirement and essential for students to maximise the opportunities available to them.

3.1.3 When a pupil’s attendance meets the criteria for a penalty notice, the expectation is that schools will make a referral to the LA, unless there are reasonable grounds for not doing so.

3.1.4 A penalty notice may be issued as an alternative to prosecution, where a pupil has accrued a minimum of 10 unauthorised absence sessions in any 10-week period. 10- week period means a continuous period of 100 half day school sessions (which would usually be 50 school days). Days when the school is not in session are not counted (such as inset days, bank holidays, school holidays and weekends). The 100 school sessions could span over two terms or two academic years.

3.1.5 A penalty notice should be used as a sanction where there is a reasonable expectation that its use will secure an improvement or change in a pattern of absence.

3.1.6 There will be circumstances where it is considered that a penalty notice is not appropriate. This may be due to a variety of reasons including but not limited to:

  • repeated offences indicating that penalty notices are not bringing about a change in behaviour for example repeated unauthorised term time leave
  • the high level of unauthorised absence, including extended unauthorised term time leave cases
  • the complex or long-standing nature of the particular case – in such cases the LA may decide not to issue a penalty notice and instead consider instigating a prosecution under Section 444(1) or 444(1A) of the Education Act 1996

3.1.7 Where a school has concerns about the attendance of a pupil, there is an expectation that the school will have made the parent/s aware of the concerns about their child’s attendance and the parent/s have had the opportunity to address this.

Parents should be aware that if they do not make use of support offered and improve their child’s attendance to an acceptable level, this may result in a penalty notice.

The LA will need to show that they have warned the parent/s that they are at risk of receiving a penalty notice or other legal sanction. This should at least be evidenced via the sending of a warning letter.

3.1.8 Penalty notices should not normally be requested where poor attendance is symptomatic of complex family circumstances; in these circumstances, the school should take a holistic approach to the issues and involve other agencies as necessary. The exception to this would be where parents fail to engage with the support offered by the school/other agencies or where the support has been unsuccessful. The LA will need to show that they have warned the parent/s that they are at risk of receiving a penalty notice or other legal sanction.

3.1.9 Each parent may be issued with a separate penalty notice for each child taken out of school. Where a parent or carer chooses to take their child out of school for a period of leave which has not been authorised by school, for example, taking a holiday in term time.

The school should ensure that it has made the parent/s aware that:

  • term time leave of absence is not an automatic right
  • school’s expectations around parents making leave of absence requests, the school granting the leave
  • unauthorised term time leave may result in a penalty notice

Schools should provide evidence that each parent has been warned in writing in the form of a letter or email.

3.2 If an excluded pupil is found in a public place during school hours

3.2.1 If a pupil is excluded, their parent must ensure the child is not present in a public place in school hours, without reasonable justification, during the first five days of every fixed period of suspension or a permanent exclusion.

Where the suspension is for five days or less, the duty applies to any of the days to which the suspension relates. (Section 103 Education and Inspections Act 2006.) A school is not deemed to be a public place for the purposes of this legislation.

Reasonable justification may include medical emergencies and hospital or other medical appointments. Shopping for clothes or food would not generally be considered reasonable. It is the parent’s responsibility to prove reasonable justification.

3.2.2 The school must have followed the Department for Education’s statutory guidance for exclusions, which will include warning parents of this provision and the days to which it applies.

3.2.3 If a pupil receives a number of fixed term exclusions and the parent allows the pupil to be in a public place more than twice, the parent may be prosecuted for any third and subsequent occasion that occurs within any 12-month period.

4. Maximum number of notices

4.1 A maximum of two penalty notices per individual child may be issued in any 12-month period.

5. Payment of penalty notices

5.1 The arrangements for payment are detailed on the penalty notice.

5.2 The penalty is £60 if paid within 21 days, rising to £120 if paid between 22 and 28 days (as at the time of writing, the penalty amount, and related timescales, may change in line with legislation changes). Payment cannot be made in instalments.

5.3 Payment of a penalty notice discharges the parent/carer from liability for the period of the offence to which the penalty notice relates.

5.4 There is no right of appeal by parents against a penalty notice.

6. Non-payment of penalty notices

6.1 If the penalty notice remains unpaid after 28 days and, providing the penalty notice has not been withdraw, the LA will look to proceed to prosecute the original offence in the magistrates’ court.

6.2  In order to prosecute, Devon County Council has six months from the date of the last recorded absence to instigate legal proceedings.

7. Circumstances when a penalty notice can be withdrawn

7.1 A penalty notice, once issued, may be withdrawn by the LA if it determines that it meets at least one of the following criteria:

  • It ought not to have been issued.
  • It ought not to have been issued to the person named as the recipient.
  • It contains material errors.
  • It is unpaid and the LA decides to take no further action. The circumstances when a penalty notice will be withdrawn are detailed on the penalty notice.