Public Sector Newsletter – April 2017

Education – interpreting ‘regular attendance’


    Features | Cases | FYI

    Feature I

    Interpreting ‘regular attendance’ in the Education Act 1996 (Isle of Wight Council v Platt)

    The Supreme Court has upheld the ban on parents taking their children out of school for family holidays during term time. Solicitor Sarah Woosey, Irwin Mitchell’s education expert, examines Isle of Wight Council v Platt and argues that the decision turns on the interpretation of ‘regular’ attendance.

    Original news

    Isle of Wight Council (Appellant) v Platt (Respondent) [2017] UKSC 28

    What is the key issue in this case?

    At the heart of the case is the interpretation of the words ‘fails to attend regularly’ in section 444(1) of the Education Act 1996. Mr Platt, a parent of a child of compulsory school age, challenged the Isle of Wight Council for issuing him with a fixed penalty notice for his alleged failure to ensure his child regularly attended school. Mr Platt’s daughter had been absent for a week in the previous February when she had been on holiday with her mother, Mr Platt’s ex-wife. She had then been absent for a further seven school days in April 2015 when she had been on holiday with Mr Platt. Her attendance was recorded at 90.3% following the holiday with Mr Platt. Prior to that, it was 95%. Mrs Platt was also issued with a fixed penalty notice when she took the child on holiday but paid it without challenge.

    Magistrates held that Mr Platt had no case to answer, as they considered that Mr Platt had, despite the holiday leave, ensured his daughter attended school regularly. The local authority’s policy stated that attendance above 90% was considered satisfactory. The matter was later challenged in the High Court by the Isle of Wight Council. Lord Justice Lloyd Jones and Mrs Justice Thirlwall dismissed the council’s challenge and held that the magistrates had not erred in law and were entitled to consider a child’s attendance outside the period of holiday in determining whether parents were ensuring their children’s regular attendance at school.

    Why did the Supreme Court take a different view?

    The Supreme Court found that the magistrates—and indeed the High Court—were wrong to conclude that Mr Platt was not guilty of an offence. The court considered that ‘regular’ could have three possible meanings:

    • at regular intervals
    • sufficiently frequently, or
    • in accordance with the rules

    The court unanimously determined that the third of these options was the correct interpretation as to the meaning of regular in relation to school attendance.

    Does the decision clarify the law or are there any remaining grey areas? What discretion does it give schools to set the rules?

    This is an important judgment for both schools and parents. The decision confirms the position that school attendance and ‘what is considered regular attendance’ is a matter for schools and local authorities and is not a matter of discretion for parents. The court was clearly concerned about the possible disruption to schools and to the education of children generally if this was left as a matter for individual parents alone. Headteachers do have the discretion to authorise some pupil absence from school, as was the case previously, and it would be good practice to ensure that schools have clear policies in place so that parents know what they can and cannot do and ensure all parents and children are treated fairly.

    Local authorities are required by existing regulations (Education (Penalty Notices) (England) Regulations 2007, SI 2007/1867) to publish a Code of Conduct for issuing penalty notices. Such a code should be issued in consultation with schools and it is important that the code is followed. This does, of course, mean that different local authorities can have different policies.

    The court discussed the possibility of its interpretation being perhaps too strict but it considered that a ‘sensible prosecution policy’ would resolve such concerns.

    Mr Platt says the case is not about the cost of holidays but the principle of who decides what is best for your child—the state, the head teacher or the parent. What is the position now?

    This decision emphasises the state’s role in ensuring that children are able to access suitable full time education. The court considered the detail legislative background of the law on attendance at school and how, over time, strict rules have been developed. This decision confirms that parents must ensure that their children receive access to suitable full time education and, if they are on roll at a school, that they comply with the rules in place to ensure this happens.

    The case now goes back to the magistrates’ court and Mr Platt says he will be pleading not guilty. What options are open to the magistrates?

    The magistrates have been directed to reconsider the decision. The Supreme Court has clearly stated that they consider Mr Platt has a case to answer. The Supreme Court also suggested that the child’s mother ‘might well feel a sense of injustice’ if the case did not proceed.

    Mr Platt says any parent facing a penalty should pay it or face potentially ruinous costs without a very strong legal argument. What would you advise other parents in this situation to consider?

    The judgment is clear as to the obligations on parents. They must follow the rules in place. The important thing now appears to be ensuring that local authorities and schools have clear and fair policies in place so that parents know exactly what will happen if their child is absent from school for a particular time and for a particular reason.

    Prosecutions for ‘unauthorised’ absences have been increasing significantly in England but, in Wales, schools can allow ten days discretionary leave. Is it sensible to have such different approaches?

    I think a more important consideration would be whether the system is working. Does England have better attendance rates as a result of this approach?

    What do you predict will be the consequences of this decision?

    This case has important implications as set out above. Prosecutions were already rising in recent years suggesting a stricter approach than perhaps that taken previously. After a period of uncertainty while this case was going through the courts, the decision is likely to give local authorities and schools the confidence to deal with non-attendance robustly.

    Interviewed by Grania Langdon-Down.

    The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

    Feature II

    School attendance

    Produced in partnership with Nicholas Hancox of Nicholas Hancox Solicitors Ltd

    Compulsory school age

    Children of compulsory school age are required to be in education (although not necessarily in school). The starting point for any question of the adequacy of a child’s school attendance is to ask whether the child is of compulsory school age. A child begins to be of compulsory school age:

    • when they attain the age of five, if they attain that age on a prescribed day, and
    • otherwise at the beginning of the prescribed day next following their attaining that age


    Education Act 1996, s 8

    The prescribed days for the start of compulsory school age are 31 August, 31 December and 31 March in each year.


    EA 1996, s 8

    E(SCSA)O 1998, SI 1998/1607

    A person ceases to be of compulsory school age at the end of the day which is the school leaving date for the school year during which they have their 16th birthday. The school leaving date is the last Friday in June. However, note that in England the 'duty to participate' set out in section 2 of the Education and Skills Act 2008 (ESA 2008) requires education or training to continue beyond compulsory school age. Unlike the duty on parents to send children of compulsory school age to school, the 2008 Act 'duty to participate' imposes upon the students themselves a duty to participate in 'appropriate full-time education or training' until the age of 18, or (if earlier) until attaining a 'level 3 qualification'.


    ESA 2008, s 2

    EA 1996, s 8

    E(SLD)O 1997, SI 1997/1970

    Education otherwise than at school

    In terms of school attendance, a child of compulsory school age must either be registered at (and attend at) a school or be suitably educated otherwise than at school. If the parent alleges that the child is being educated otherwise than at school, then a function of the local authority is to check the suitability and adequacy of the education. If the education otherwise is inadequate, then a school attendance order may be sought, requiring the child to be enrolled (registered) at a school.


    EA 1996, ss 7, 434, 437

    Local authorities sometimes themselves organise education for individual children otherwise than at school. The usual penalties for failure to attend school cannot be used, but there is a parallel enforcement mechanism in section 444ZA of the Education Act 1996 (EA 1996) which can be used instead.


    EA 1996, s 444ZA

    School registers

    Every school (maintained, academy or independent) is obliged to keep a register of each pupil enrolled there and to keep a register of the attendances and absences of each enrolled pupil. . Attendance at school is only compulsory on a school day. At maintained schools there are about 190 school days (380 half-days) in each school year. Schools in all sectors are required to provide information to the local authority (among others) setting out the names and addresses of its registered pupils and the details of their attendances at, or absences from, school. The school must make a return to the local authority each time a pupil is added to a school register providing all required information relating to that pupil. A return must also be made with in-formation relating to a pupil being removed from the register together with the circumstances of removal.


    EA 1996, ss 434, 569, 579(1)

    E(PR)(E)R 2006, SI 2006/1751, reg 8(1)

    E(SDSY)R 1999, SI 1999/3181 (with occasional variations by amending SI)

    Enforcement of compulsory school attendance

    It is a criminal offence for a parent to fail to comply with a school attendance order. The parent also commits a (different) criminal offence if a child registered at a school fails to attend regularly and if the parent fails to cause them to attend regularly.


    EA 1996, ss 443, 444, 444A, 444B

    Education is compulsory on a full-time basis. Taking a child out of school for a family holiday is disruptive not only of the education of that child, but also for others in that child’s class and an unauthorised family holiday during school days will inevitably disrupt 'regular' education. In Isle of Wight Council v Platt, the Supreme Court held that, for the purposes of EA 1996, s 444(1), ‘regularly’ means ‘in accordance with the rules prescribed by the school’. (Note that there is some overlapping here between the local authority’s statutory Code of Conduct for the issuing of Penalty Notices and the individual school’s criteria for authorising an absence).


    EA 1996, ss 7, 444(1)

    SI 2007/1867

    Isle of Wight Council (Appellant) v Platt (Respondent) [2017] UKSC 28, [2017] All ER (D) 20 (Apr)

    There are statutory defences available if the child is, for example, ill and there is a particular interconnection with the school transport law, under which the absence of necessary home-to-school transport is a defence to a charge of non-attendance. Fixed-penalty notices may be served upon parents by authorised officers and by head teachers, in lieu of prosecution.

    For more information, see Practice Notes: School transport and out-of-school trips, Education Act offences and Failure to secure attendance at school.

    Before instituting criminal proceedings for non-attendance under EA 1996, ss 443 or 444, the local authority must consider using an education supervision order. This prerequisite does not apply to the use of penalty notices under EA 1996, s 444A. In practice, not many education supervision orders are sought. See Practice Note: Education supervision orders.


    EA 1996, s 447

    Children Act 1989, s 36

    Parents convicted under EA 1996, ss 443 or 444 may then be given a parenting order, requiring them to attend a counselling or guidance programme, which may include a residential element. In deciding whether or not a parenting order is desirable, the court will look at whether a parenting contract has yet been tried and, if so, how well it went.


    Crime and Disorder Act 1998, s 8

    Anti-social Behaviour Act 2003, s 21

    Although (part-time) early years education is available free of charge to all children aged three and four, there is no obligation to take up that option and early years attendance cannot be enforced against a child or any parent. Parenting contracts can apply either after a school exclusion or after a failure to attend school regularly. They are not readily enforceable, except by a subsequent parenting order, which in turn requires for its enforcement a criminal prosecution under EA 1996, ss 443 or 444.


    ABA 2003, s 19

    EA 1996, ss 443, 444

    Truancy sweeps

    Police officers and community support officers are authorised to round up truanting children of compulsory school age who are either excluded from school (without having been admitted to a new school) or are simply absent from school without lawful authority. These children may be removed by the officers to a designated place, or back to the school from which they are absent. Truancy sweeps must take place during school time, on a school day and in a public place. A public place is defined as ‘any highway and any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission’.


    CDA 1998, s 16

    Education and Inspections Act 2006, s 108

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    McTier v Secretary of State for Education [2017] EWHC 212 (Admin)

    The Administrative Court allowed the appellant's appeal against the respondent Secretary of State's decision that the appellant should be prohibited indefinitely from specified teaching. Although the legislative provisions conferring power on the Secretary of State to prohibit teachers from teaching on the ground of misconduct applied to conduct committed before the relevant statutory provisions had entered into force, the decision was flawed, wrong and had to be set aside.

    Education Act 2002, s 141A(1)(a), Sexual Offences Act 2003 – Teachers' Disciplinary (England) Regulations 2012, SI 2012/560, reg 17.

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    New company to purchase sites for 500 new free schools

    A new public property company has been set up to create around 500 new free schools, the Department for Education (DfE) has announced. The company, LocatED, will look to create 600,000 free school places by 2021. Source: Press release: Government launches company to create more free schools

    New agency to provide education funding

    The Education Funding Agency and Skills Funding Agency are to merge to become ‘the Education and Skills Funding Agency’, a single funding agency which will sit within the Department for Education and begin to operate from April 2017. The new body will continue to carry out the functions of its predecessors including the funding of education and training for pupils aged 5 to 19, apprenticeships and adult education and managing school building programmes. Source: Press release: New agency to provide joined-up education and skills funding

    Sex education could be made compulsory in schools

    The Department for Education (DfE) has issued a policy statement on relationships education, relationships and sex education (RSE), and personal, social, health and economic education (PSHE) in schools. The statement explains the government amendment to the Children and Social Work Bill to introduce Regulations covering relationships education in primary schools, RSE in secondary schools and PSHE in all schools. Source: Policy paper: Relationships education, RSE and PSHE

    New schools funding for healthy lifestyles and facilities

    Schools will receive £415m to help pupils benefit from healthier, more active lifestyles, Education Secretary Justine Greening has announced. The money—from the Soft Drinks Industry Levy—will be available to schools in the 2018/19 financial year. The government has also pledged to ensure the amount schools receive will not fall below £415 million regardless of the funds generated by the levy. Source: Press release: New funding to boost schools facilities and healthy lifestyles

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