Non-School Attendance Fixed Penalty Notice
Local Code Of Practice
General and Background
- Legal basis
- Penalty Notices for the whereabouts of excluded pupils
- Legal practicalities
- Circumstances for issuing a penalty notice - Irregular attendance
- Circumstances for issuing a penalty notice - Whereabouts of excluded pupils
- Withdrawal of a penalty notice
- Representation
- Payment of penalty notice
- Non-payment of penalty notice
- How to get further information
1. Legal basis
Section 23 of the Anti Behaviour Act 2003 empowers designated Local Authority officers, Head Teachers (or Deputy and Assistant Headteachers authorised by them) and the police to issue penalty notices in cases of:
- Unauthorised absence from school
- The whereabouts of pupils excluded from school
The Education (Penalty Notices) (England) Regulations 2004 came into force on 27th February 2004. This legislation was amended in the Education (Penalty Notices) (England) (Amendment) Regulations 2007 which came into force on 1st September 2007 and in the Education (Penalty Notices) (England) (Amendment) Regulations 2012 which came into force on 1st September 2012.
The issuing of penalty notices must conform to all requirements of the Human Rights Act and Disability and Equal Opportunities legislation.
Regular and punctual attendance at school is both a legal requirement and essential for pupils to maximise their educational opportunities. There is a very clear correlation between good school attendance and good educational outcomes. This is demonstrated in the Department for Education research document “The Link Between Absence and Attainment” (PDF, external link)
Haringey Council support young people to thrive in school, and to ensure that they have positive aspirations for the future and access to employment and training opportunities to get there. This is clearly outlined in our Young People at Risk Strategy.
In law, an offence occurs if a parent fails to secure their child's attendance at school and that absence is not authorised by the school. Penalty notices supplement the existing sanctions currently available under S444 Education Act 1996 or S36 Children Act 1989 to enforce attendance at school where appropriate. The Education Welfare Service delivers this Local Authority responsibility.
2. Penalty notices for the whereabouts of excluded pupils
Parents are expected to make arrangements for the supervision of pupils who have been excluded from school on any day which is one of the first five school days to which any exclusion relates. Parents of an excluded pupil found to be in a public place without good reason may be issued with a penalty notice.
3. Legal practicalities
The penalty notice is £120, but a 50% discount is applied if the penalty notice is paid within 21 days of receipt of the notice. If paid within 21 days of issue, the amount payable is therefore £60. The penalty rises to £120 if paid after 21 days but within 28 days of receipt of the penalty notice. Payment must be in full; we will not accept part payments or payments over time.
If the penalty is not paid in full by the end of the 28 days the Local Authority must either prosecute for the offence or withdraw the notice. This prosecution is for the offence of failing to secure attendance at school, not for non-payment of the penalty notice. Prosecutions are brought under S444 Education Act 1996. Withdrawal of the notice can only take place in very limited circumstances as set out in this code of conduct.
Penalty notices will be issued to each parent of each child whose absence from school meets the code of conduct. This means that where a family consists of father, mother and two children, the father will receive two penalty notices, one per child, and the mother will also receive two penalty notices, one per child. This family will therefore receive four penalty notices, all of which must be paid. If only one parent pays the penalty notice, legal proceedings will be taken against the parent that has not paid.
Only one penalty notice will be issued in respect of a child in any 12 month period. If a pupil has accrued further unauthorised absence from school following the issue of a penalty notice within a 12 month period, a second penalty notice will not be issued in respect of that pupil. The Local Authority will instead consider prosecution brought under S444 of the 1996 Education Act 1996.
4. Circumstances for issuing a penalty notice – Irregular attendance
A penalty notice can only be issued in cases of unauthorised absence. Penalty notices may be issued in the following circumstances (this list is not exhaustive):
- Truancy
- Parentally condoned absences
- Holidays taken in term-time without the agreement of the head teacher
- Delay in returning from extended holidays without the agreement of the head teacher
- Persistent late arrival at school after the register has closed.
A Penalty Notice may be issued if:
- A registered pupil has been absent for 6 or more sessions in any six week period
And - The school have marked the absences as unauthorised in the school’s registers
And - The Local Authority is satisfied that there is sufficient evidence to show the parent has committed an offence under s444(1) of the Education Act 1996
And - A formal warning of the possibility of a penalty notice being issued has been served giving a maximum of 15 school days to effect an improvement
Or - The parent has been warned that unauthorised holiday in term-time may result in a penalty notice being issued
And - A penalty notice has not been issued in the past 12 months in respect of the child in question (if so alternative processes are available).
5. Circumstances for issuing a penalty notice – Whereabouts of excluded pupils
Where the Education Welfare Service is notified that a parent is believed to be failing in their statutory duty to ensure that excluded children are not in a public place without good reason in the first five days of an exclusion, the referrer must have investigated the facts of the case in order to determine whether an offence has been committed.
It is expected that in the first instance parents would be reminded of their duty under this legislation and warned as to future behaviour, but subsequently a penalty notice may be issued in cases where the criteria has been met.
6. Withdrawal of a penalty notice
Once issued a penalty notice may only be withdrawn by the Local Authority in the following circumstances:
- Proof has been established that the penalty notice has been issued to the wrong person
- The penalty notice ought not to have been issued i.e. where it has been issued outside the terms of this code of conduct or no offence has been committed.
7. Representation
There is no statutory right of appeal against the issuing of a penalty notice.
The parent is encouraged to contact their child’s school in the first instance if they feel that the penalty notice shouldn’t have been issued, and following this, may make representations to the Principal Education Welfare Officer, Education Welfare Service, setting out reasons why the penalty notice should not be issued.
8. Payment of penalty notice
Arrangements for payment will be detailed on the penalty notice. Part payment or payment in instalments will not be accepted.
Payment of the notice discharges the parent's liability for the period in question and they cannot be subsequently prosecuted under other enforcement powers for the period covered by the notice.
The Local Authority retains any revenue from any penalty notice to cover enforcement costs. It is unlikely that revenue will be greater than enforcement costs. If revenue is greater than enforcement costs that sum is held by central government.
9. Non-payment of penalty notice
Non-payment of a Penalty Notice will result in the withdrawal of the notice and will trigger prosecution under the provisions of S444, 1996 Education Act.
10. Further information
Education Welfare Service
48 Station Road
Wood Green
London
N22 7TY
Tel: 020 8489 3866
Email: ews@haringey.gov.uk