This page provides information about the law on school attendance and the powers of the Local Authority in enforcing school attendance.
Under the Coronavirus Act 2020, the government disapplied certain statutory provisions on school attendance so that the parent of a child of compulsory school age would not be guilty of an offence on account of their child’s failure to attend school regularly at the school at which the child is registered. This followed the decision of the government to close schools, colleges and nurseries in March 2020. From the start of the autumn term, however, pupil attendance at school is compulsory and the usual rules on school attendance apply once more. This includes the parents’ duty to ensure that their child of compulsory school age attends regularly at the school where the child is a registered pupil and the ability to issue sanctions, including fixed penalty notices, in line with local authorities’ codes of conduct.
With the ever-present threat of Coronavirus there are circumstances when a pupil is unable to attend school for reasons related to Coronavirus. Therefore, although school attendance is now compulsory, a new category (Code X) has been introduced to the regulations governing school attendance registers – ‘not attending in circumstances related to Coronavirus (Covid-19)’. This code is used to record sessions where the pupil’s travel to or presence at school would conflict with:
- Guidance relating to the incidence or transmission of coronavirus (COVID-19) from Public Health England or the Department of Health and Social Care; or
- Any legislation (or instruments such as statutory directions) relating to the incidence or transmission of coronavirus (COVID-19).
This new category of non-attendance will not count as an absence for statistical purposes and the pupil’s parent will not be sanctioned if Code X applies.
The Department for Education has published an addendum to the school attendance guidance which details the new category and outlines the circumstances in which it could apply.
Under the current government guidelines on the new lockdown which will commence in England on 4th January 2021 schools will be closed to the majority of pupils (other than pupils considered to be vulnerable or pupils who are the children of critical workers) and pupils who are not allowed to attend should be marked with Code X on the register. Schools should provide pupils with remote education.
What is compulsory school age?
A child is of compulsory school age at the beginning of the 1st term after their 5th birthday, so:
- children who turn 5 between 1st January and 31st March will be of compulsory school age at the beginning of the school term after 31st March;
- children who turn 5 between 1st April and 31st August will be of compulsory school age at the beginning of the school term after 31st August;
- children who turn 5 between 1st September and 31st December will be of compulsory school age at the beginning of the school term after 31st December.
A child remains of compulsory school age until the last Friday in June in the school year that they turn 16. From September 2013 all 16 year olds must to remain in education or training until the end of that academic year and from September 2015 they will be required to continue until their 18th birthday.
Who is considered a parent in education law?
Section 576 Education Act 1996 defines a ‘parent’ widely to include:
- a biological parent of the child (even if they do not have Parental Responsibility and even if the child does not reside with that parent);
- any person who is not a parent but has Parental Responsibility for the child (for example through a Residence Order, Child Arrangements Order, Special Guardianship Order, Step-Parental Responsibility Order, Adoption Order or Care Order);
- someone who has care of the child.
Therefore all these people have the duty to ensure a child of compulsory school age receives a suitable education. This does not mean that the child has to attend a school – it is possible to fulfil this duty by home educating the child. Please see our page on Home Education for more information.
What is a suitable education?
The education must be:
- efficient – the education must achieve what it sets out to achieve;
- suitable – to their age, ability and aptitude and any special educational needs they may have. The education must equip the child for life within the community and must not limit a child’s options in later life.
What is the law on school attendance?
All schools, including independent schools, must maintain an Admissions Register and all schools except boarding schools must have an Attendance Register. The Registration (Pupil Registration) Regulations 2006 require a school to put the child’s name on the Admissions Register on the first day that the child is expected to attend school. If the pupil does not attend, they will be recorded as absent – this can be authorised or unauthorised.
A school will authorise an absence if:
- the child is too ill to attend and the school accepts this as valid (Schools should authorise absences due to illness unless they have genuine cause for concern about the veracity of an illness. If the authenticity of illness is in doubt, schools can request parents to provide medical evidence to support illness. It should be noted that GPs do not provide sick notes for schoolchildren. When children are absent from school owing to illness, schools may request a letter from a parent or guardian, and this is no different during an exam period. However, children who have missed exams due to illness are frequently told by schools that a note from a doctor is required; but this cannot be provided by a GP. Aside from the fact that parents/guardians are responsible for excusing their children from school, GPs cannot provide retrospective sickness certification. When a child suffers from a long-term condition, any certification will be provided by the responsible specialist).
- the parent has got the advance permission of the school e.g. for a holiday, religious observation;
- the child has a medical or dental appointment;
- the child is on study leave;
- the child is being educated off-site;
- the child has been excluded.
Schools have to regularly inform the Local Authority of any pupils who are regularly absent from school, have irregular attendance, or have missed 10 school days or more without the school’s permission.
Schools also have a safeguarding duty, under section 175 Education Act 2002, to investigate any unexplained absences.
Can I book a holiday during term time?
Head teachers will only authorise holiday during term-time in exceptional circumstances. You should put your request in writing to the school as soon as possible. If you go on a holiday without the authorisation of the head teacher, you may be liable to pay a fine and/or be prosecuted for non-attendance.
What sanctions can be put in place for non-attendance?
Parents can be issued a Fixed Penalty Notice by the Local Authority for their child’s non-attendance. The penalty is £60 and this rises to £120 if paid after 21 days but within 28 days. Each Local Authority should publish a ‘Code of Conduct’ for Fixed Penalty Notices. The School’s headteacher decides if they wish to fine unauthorised absences from school by issuing a Fixed Penalty Notice. The headteacher then requests by a referral to the Local Authority to issue a fixed Penalty Notice on his or her behalf.
There is no right of appeal against a Fixed Penalty Notice. If this is not paid, the Local Authority can proceed to prosecution or withdraw the notice. The Local Authority can also prosecute parents for non-attendance without issuing a Fixed Penalty Notice. Only the Local Authority can prosecute parents and they must fund all associated costs. Local authorities must conduct its investigations in line with the Police and Criminal Evidence Act 1984 (PACE).
If a registered pupil of compulsory school age fails to attend school regularly, the parent could be guilty of an offence under section 444 Education Act 1996. In April 2017, the Supreme Court held that attending school “regularly” means attendance in accordance with the rules prescribed by the school and not “sufficiently frequent attendance“. This means that a child must attend school on every day that the school requires him or her to do so and failure to do this may lead to the commission of an offence.
There are 2 offences:
1. Section 444(1) Education Act 1996 – If the child is absent without authorisation then the parent is guilty of an offence. This is a strict liability offence i.e. all that needs to be shown is a lack of regular attendance. Sanctions can include a fine of up to £1,000.
2. Section 444(1A) Education Act 1996 – an aggravated offence. If the child is absent without authorisation and the parent knew about the child’s absence and failed to act then the parent is guilty of an offence. Sanctions can include a fine of up to £2,500 and a prison sentence of up to 3 months.
There are some limited defences to these offences:
- The head teacher authorised the absence.
- The child could not attend because of sickness or ‘unavoidable cause’ in an emergency. Case law has held that stress arising from bullying, behavioural or mental health difficulties or a ‘chaotic lifestyle’ should not be considered an ‘unavoidable cause’.
- The child was absent on a day exclusively set apart for religious observance.
- The school is outside of the statutory walking distance of the child’s home and the Local Authority has a duty to make travel arrangements in relation to the child under and has failed to discharge that duty
- The child is not registered at the school and the parents are providing a suitable alternative education.
- The parents’ trade or business requires them to travel from place to place.
Parents can also be prosecuted by Local Authorities under section 103 Education and Inspections Act 2006, where a pupil of compulsory school age who remains on the Admissions Register is found in a public place during school hours, after being excluded from school. Sanctions can include a fine of up to £1,000.
I have received a summons to the Magistrates Court – what should I do?
If you have received a summons for court for one of the above offences, you should seek the advice of a criminal solicitor and check whether you qualify for criminal legal aid. Some courts can provide duty solicitors, who may be able to advise and represent you at a hearing, usually if there is a risk of imprisonment.
We are unable to provide much information or advice once a summons has been issued as the matter is then covered by criminal law and not education law.
Can I ask for help in getting my child to attend school
If you are finding it difficult to get your child to attend school, you can ask the Local Authority and school to help you. You can agree a plan to help improve your child’s attendance which can result in drawing up a “Parenting Contract” under s.19 Anti-Social Behaviour Act 2003. This is a voluntary agreement between you and the Local Authority or school governing body to encourage school attendance. The agreement should include:
- a statement by the parents that they agree to comply for a specified period with whatever requirements are set out in the agreement; and
- a statement by the LA or governing body agreeing to provide support to the parents for the purpose of complying with the agreement.
The agreement is not legally binding as such but can be used as evidence if the Local Authority later decides to prosecute. The Local Authority or governing body should fund any support needed to implement the Parenting Contract e.g. a requirement to attend parenting classes.
What is a Parenting Order?
The court can impose a Parenting Order following a successful prosecution for irregular attendance or failure to follow a School Attendance Order. A Parenting Order can also be made up to 6 months after a Parenting Contract has been entered into.
The court can also impose an order on its own, if the Local Authority or governing body apply for this within 40 school days of a child’s serious misbehaviour or review of a child’s exclusion. The order will:
- require parents to attend parenting classes for up to 3 months, to support them in improving the child’s behaviour;
- require parents to comply with other conditions, for up to 12 months.
Parents have a right of appeal against an order to the Crown Court.
A responsible officer from the school or Local Authority will supervise the order. Breach of the order without reasonable excuse can lead to a fine of up to £1,000. The police can enforce the order.
What is a School Attendance Order?
If the Local Authority is not satisfied that the parents are providing a suitable education to a child of compulsory school age and it is appropriate for the child to attend school, they can apply for a School Attendance Order under section 437(3) Education Act 1996.
The order will require the child’s parents to register the child at a named school. Failure to comply with a School Attendance Order amounts to an offence which the parent can be prosecuted for.
What if a parent does not comply with a School Attendance Order?
If the parents do not register the child at a school after the School Attendance Order has been issued, the Local Authority may choose to prosecute. The case will then go to the Magistrates Court and the parent(s) will be given the opportunity to show that a suitable education is being provided.
If the Court find that the education provided is not suitable, parents can face a fine of up to £1000. If the parent(s) are acquitted, the Court can direct that the School Attendance Order be discharged and no longer in force.
What is an Education Supervision Order?
The Local Authority can apply for an Education Supervision Order under section 36 Children’s Act 1989 if it believes a child of compulsory school age is not being properly educated. This can include irregular attendance at school.
Under the Education Supervision Order, a supervisor will be appointed for the child who will advise, assist, befriend and give directions to the child and their parents to ensure that they are properly educated.
When can a child’s name be removed from the school roll?
A school can only remove a child’s name from the school roll in particular circumstances, as set out in Regulation 8 of Education (Pupil Registration) (England) Regulations 2006.
The school has to inform the Local Authority under Regulation 12(3) Education (Pupil Registration) (England) Regulations 2006 of any pupil who is going to be removed from the admissions register where:
- the child will be home educated;
- the child has moved away and no longer attends school;
- the child has a medical condition and is certified as unlikely to be in a fit state of health to attend school;
- the child is in custody for more than 4 months and it is not reasonably believed he/she will return to school;
- the child has been permanently excluded.