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Unauthorised absence from school

School gate iStock 000003257894XSmall 146x219What happens if a parent refuses to pay a penalty notice for their children's unauthorised absence from school? The LexisPSL Local Government team sets out the key points.

This Q&A looks at the circumstances in which a penalty notice for non-attendance at school may be issued to parents under section 444A of the Education Act 1996, the options available to a local authority if a penalty notice is not complied with and when a local authority is required to consider issuing an Education Supervision Order.

Penalty notice issued under section 444A of the Education Act 1996

Section 444A of the Education Act 1996 (EA 1996) is described by the Department of Education in its publication, Parental responsibility measures for behaviour and attendance, as an alternative to prosecution. It offers parents the option of paying a fixed penalty within a specified period of 28 days. If they do not, a prosecution may occur. The statutory requirements for issuing a penalty notice are that the authorised person has 'reason to believe that a person has committed an offence under s 444(1)'. Although this is not a criminal standard of proof, sufficient evidence should be available to justify the issuing of such an order. However there is no appeal against a notice. The imposition of a penalty charge is not a criminal prosecution. As such the requirement to consider an education supervision order (ESO) is not imposed by EA 1996, s 447.

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A penalty charge under EA 1996, s 444A can be issued by a local authority, a police constable, a head teacher of the school that the child should have been attending or another teacher authorised by that head teacher. By contrast, criminal prosecution under EA 1996, s 443 or s 444 can only be brought by a local authority. As the local authority will have the responsibility for bringing any action should the penalty notice not be complied with, in practice most penalty charges are issued by them.

Regulation 14 of the Education (Penalty Notices) (England) Regulations 2007 (EPNER 2007), SI 2007/1867 provides that each local authority is responsible for drawing up a code of conduct to ensure consistency in the issuing of penalty notices. Therefore, it is this Code that will determine how each local authority should proceed in non-attendance matters and may be subject to variation between authorities.

The policy adopted by each school and local authority is expected to have been widely consulted upon and made clear to parents before implementation. It is intended for use in cases where the absences are infrequent such as unauthorised term time holidays rather than persistent absences indicative of a wider problem.

What happens if a penalty notice is not paid?

The EPNER 2007, SI 2007/1867 direct that if the penalty notice has not been paid the local authority must either issue proceedings or they must withdraw the notice (EPNER 2007, reg 9--non-payment of the penalty). This effectively requires the local authority to consider whether or not the parent's conduct is sufficiently serious to warrant commencing criminal proceedings.

If proceedings are deemed to be appropriate then the action will be a criminal prosecution under EA 1996, s 444(1) or s 444(1A) as opposed to an action for failing to pay a penalty notice. The provisions of EA 1996, s 447 will then apply, requiring consideration of an ESO.

Note that the government has announced plans to introduce measures to allow unpaid penalty notices to be recovered directly through parents' child benefit and, where parents do not receive child benefit, through the courts.The new mandatory penalty for each offence will be £60 if paid within 21 days and £120 subsequently. Where children truant and parents do not pay the PCN, local authorities will be placed under a duty to pursue those parents who earn more than £50,000 per annum through the courts by way of prosecution. For more information on the proposed changes, see News Analysis: Waiting at the school gates—resolving persistent truancy.

Non-attendance under the EA 1996--issuing an education supervision order

The EA 1996 stipulates that before criminal proceedings for non-attendance are issued under EA 1996, s 443 (failure to comply with school attendance order) or EA 1996, s 444 (failure to secure regular attendance at school of registered pupil), an ESO should be considered first if it is deemed appropriate.

Under the section 36 of the Children Act 1989 (ChA 1989), the purpose of issuing an ESO is to enable the local authority to step in where there are concerns that the child is not being properly educated. If the concerns are found to be only within the remit of education, rather than wider issues related to their care then an ESO will be used as a way to protect the child in this context instead of issuing child care proceedings.

EA 1996, s 447 refers to ESOs, and this authority specifically states that they must be considered before issuing proceedings under EA 1996, s 443 or s 444:

'(1) Before instituting proceedings for an offence under section 443 or 444, a [local authority] shall consider whether it would be appropriate (instead of or as well as instituting the proceedings) to apply for an education supervision order with respect to the child.

(2) The court

(a) by which a person is convicted of an offence under section 443, or

(b) before which a person is charged with an offence under section 444, may direct the [local authority] instituting the proceedings to apply for an education supervision order with respect to the child unless the authority. . . decide that the child's welfare will be satisfactorily safeguarded even though no education supervision order is made.'

This Q&A was originally published in LexisPSL Local Government. If you would like to read more quality articles like this then register for a free 1 week trial of LexisPSL.

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