Penalty notices
The Education (Penalty Notices) (England) Regulations 2007 as amended set out the framework for the operation of the Penalty Notice scheme.
Parent
For the purposes of education law and this code of conduct a “parent” means all natural parents, whether they are married or not. It includes any person having parental responsibility for a child (a person under 18 years of age) who, although not the child’s natural parent, has care of that child. Having care of a child means an adult with whom the child lives and who looks after the child on a day-to-day basis. Any reference to a “parent” in this code of conduct is a reference to anyone having care of a child as set out above.
Use of Penalty Notices
Lincolnshire County Council’s Attendance team are responsible for delivering this function. Penalty Notices will only be issued within this Code of Conduct.
Penalties are one of the tools available to the LA to tackle poor school attendance. Where thought appropriate alternative approaches such as Education Supervision Orders and prosecution may be utilised at the discretion of the LA.
Penalty Notices are intended to prevent the need for court action and should only be used where it is likely to change parental behaviour and support to secure regular school attendance has been provided and has not worked or been engaged with, or would not have been appropriate in the offence (e.g. unauthorised holiday in term time).
The following considerations will be made before issuing (or requesting that another authorised officer issues) a Penalty Notice to ensure consistency of approach:
In cases where support is not appropriate (for example, for holidays in term time)
- Is a Penalty Notice the best available tool to improve attendance and change parental behaviour for this particular family or would one of the other legal interventions be more appropriate?
- Is issuing a Penalty Notice in this case appropriate after considering any obligations under the Equality Act 2010?
- (For local authorities only) Is it in the public interest to issue a Penalty Notice in this case given the local authority would be accepting responsibility for any resulting prosecution for the original offence in cases of non-payment?
In cases where support is appropriate, consider on a case-by-case basis:
- Has sufficient support already been provided? As detailed in the notice to improve
- Is a Penalty Notice the best available tool to improve attendance and change parental behaviour for this particular family or would one of the other legal interventions be more appropriate?
- Is issuing a Penalty Notice in this case appropriate after considering any obligations under the Equality Act 2010?
- (For local authorities only) Is it in the public interest to issue a Penalty Notice in this case given the local authority would be responsible for any resulting prosecution for the original offence in cases of non-payment?
If the answer to the above questions is ‘yes’, then a Penalty Notice (or a notice to improve in cases where support is appropriate) will usually be issued.
Use of Penalty Notices will be restricted to two per parent, per child in a three-year rolling period. In situations where a parent meets the criteria for more than one Penalty Notice to be issued because there is more than one child with irregular school attendance, multiple issues may occur. Where a child resides with two parents a separate Penalty Notice may be issued to each parent. A Penalty Notice should only be issued to the parent who has allowed the absence.
Threshold
The threshold for prosecution is 10 sessions of unauthorised absence in a rolling period of 10 school weeks. A session is a morning or afternoon registration session, meaning two sessions in an ordinary school day.
The threshold ‘A school week’ means any week in which there is at least one school session. This can be met with any combination of unauthorised absence (for example, 4 sessions of holiday taken in term time plus 6 sessions of arriving late after the register closes all within 10 school weeks). These sessions can be consecutive (for example, 10 sessions of holiday in one week) or not (for example, 6 sessions of unauthorised absence taken in 1 week and 1 per week for the next 4 weeks). The period of 10 school weeks can also span different terms or school years (for example, 2 sessions of unauthorised absence in the summer term and a further eight within the autumn term).
All state funded schools must consider whether a Penalty Notice is appropriate in each individual case where one of their pupils reaches the national threshold for considering a Penalty Notice. Schools should not have a blanket position of issuing or not issuing Penalty Notices and should make judgements on each individual case. Evidence of this consideration may be requested by the LA.
A Penalty Notice from being used in other cases where the threshold of 10% absence in a 10-week period has not been met but where an offence has been committed. Before doing so authorised officers will make the same considerations regarding the likely impact of such action. If in an individual case the local authority (or other authorised officer) believes a Penalty Notice would be appropriate.
Notice to improve
A notice to improve is a final opportunity for a parent to engage in support and improve attendance before a Penalty Notice is issued. Parents must always be forewarned of the possible issue of a Penalty Notice by the school through this letter. This letter will be sent to the parents directly by the school, and a copy sent to the local authority through the report a notice to improve form.
A notice to improve letter can also be issued by the school in cases where a Penalty may not be suitable as the threshold has not been met but a period of unauthorised absence has occurred. This would show consistent practice in relation to application for absence during term time.
The notice to improve is expected to include:
- details of the pupil’s attendance record and details of the offences
- the benefits of regular attendance and parents’ duty under section 7 of the Education Act 1996
- details of the support provided so far
- opportunities for further support and the option to access previously provided support that was not engaged with
- a clear warning that a Penalty Notice may be issued, or prosecution considered if attendance improvement is not secured within the improvement period
- a clear timeframe for the improvement period of between three and six weeks
- details of what sufficient improvement within that timeframe will look like
- the grounds on which a Penalty Notice may be issued before the end of the improvement period
What sufficient improvement looks like can be decided on a case by case basis taking the individual family’s circumstances into account. For some families, no further unauthorised absences will be appropriate, for others some absence may be tolerable if considerable improvement is seen. Details of what sufficient improvement for each case should be made clear in the notice to improve.
Where it is clear that improvement is not being made, it may be appropriate to issue a Penalty Notice before the improvement period has ended. The parent must be informed in writing before a Penalty Notice is issued if it is before the end of the improvement period.
There is no restriction on the number of times a parent may receive a notice to improve letter of the possible issue of a Penalty Notice.
Non-attendance
It must be remembered that to count as non-attendance at school the absence must be unauthorised. The Education (Pupil Registration) (England) (Amendment) Regulations 2013 have removed the reference to holidays during term time. It now provides that a leave of absence during term time will only be granted where an application is made in advance to the school and the school consider that the leave of absence should be granted due to exceptional circumstances relating to that application.
What amounts to "exceptional circumstances" is a matter for the discretion of the head teacher. It should be judged on a case-by-case basis. It is unlikely to amount to an exceptional circumstance if it is merely claimed that:
- a holiday abroad can only be afforded in term time or
- that a parent is unable to take leave during school holidays. (This is a matter between the parent and their employer)
Head teachers should also consider asking for evidence of the circumstances that has arisen where appropriate.