What is an education fixed penalty notice and when are these issued?

What is an education penalty notice?

Penalty notices are issued to parents as an alternative to prosecution where they have failed to ensure that their child of compulsory school age regularly attends the school where they are registered or, in certain cases, at a place where alternative provision is provided. Penalty notices can be used by all schools (with the exception of independent schools) where the pupil’s absence has been recorded with one or more of the unauthorised codes and that absence(s) constitutes an offence. A penalty notice can be issued to each parent liable for the offence or offences. They should usually only be issued to the parent or parents who have allowed the absence (regardless of which parent has applied for a leave of absence).

Penalty notices must be issued in line with the Education (Penalty Notices) (England) Regulations 2007, as amended and can only be issued by a headteacher or someone authorised by them (a deputy or assistant head), a local authority officer or the police. They must also be issued in line with Local Codes of Conduct which are drawn up and maintained by each local authority.

The threshold is 10 sessions of unauthorised absence in a rolling period of 10 school weeks. 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 These sessions can be consecutive or not. The period of 10 school weeks can also span  different terms or school years (e.g. 2 sessions of unauthorised absence in the Summer Term and a further 8 within the Autumn Term).

Two Penalty Notice limit and escalation in cases of repeat offences

If repeated penalty notices are being issued and they are not working to change behaviour they are unlikely to be most appropriate tool. Only 2 penalty notices can be issued to the same parent in respect of the same child within a 3 year rolling period and any second notice within that period is charged at a higher rate:

• The first penalty notice issued to a parent in respect of a particular pupil will be charged at £160 if paid within 28 days. This will be reduced to £80 if paid within 21 days.
• A second penalty notice issued to the same parent in respect of the same pupil is charged at a flat rate of £160 if paid within 28 days.
• A third penalty notice cannot be issued to the same parent in respect of the same child within 3 years of the date of issue of the first. In a case where the national threshold is met for a third time (or subsequent times) within those 3 years, alternative action should be taken instead. This will often include considering prosecution, but may include other tools such as one of the other attendance legal interventions.
• Once 3 years has elapsed since the first penalty notice was issued a further penalty notice can be issued, but in most cases, it would not be the most effective tool for changing what may have now become an entrenched pattern of behaviour. For the purpose of the escalation process, previous penalty notices include those not paid (including where prosecution was taken forward and the parent pleaded or was found guilty) but not those which were withdrawn.

How will I know when I am going to receive a fixed penalty notice?

Before Fixed Penalty Notices are issued, you will receive a written warning which will explain the extent of your child’s non-attendance and the possibility of you receiving a Fixed Penalty Notice if their attendance does not improve in 10 sessions. During this period, your child must not have any further unauthorised absences from school. There is no limit to the number of times a formal warning of a possible Fixed Penalty Notice issue may be made in any particular case.

What kind of unauthorised absences result in the issuing of a fixed penalty notice?

• Where students are openly truanting (this includes students found during truancy sweeps by the police).
• Absences from school which parents or carers are aware of, but that are not authorised by the school.
• Holidays that have been taken in term time which the Headteacher has not authorised.
• An unacceptably delayed return from an extended holiday if the parents or carers have not received permission beforehand from the school.
• Regular late arrival at school (after the register has closed).

The offences
Local Authorities (LA’s) have the power to prosecute parents who:
• Fail to ensure their child’s regular attendance at school (section 444, Education Act (EA) 1996)
• Knowingly allow their child to be absent from school without authorisation (section 444(1A), EA 1996)
• Persistently fail to comply with directions given under an Education Supervision Order (ESO) ((paragraph 18(1), Schedule 3, Children Act 1989)

Only the LA can prosecute parents for the offences found in section 444 of the Education Act 1996 (section 446, EA 1996) and they must fund all associated costs.

Failure to ensure a child’s regular attendance at school (sec 444(1))

Parents are guilty of an offence for failing to ensure that their child regularly attends school (section 444(1) and (ZA), EA 1996).

With regards to the section 444(1) offence, the LA will need to prove to the criminal standard that the child is a registered pupil at a relevant school and that he is of compulsory school age and has failed to regularly attend school without authorisation.

The only evidence that the LA will need to provide the court with, is the certificate of attendance and why an Education Supervision Order (ESO) is not appropriate.

Knowingly allowing a child to be absent from school without authorisation (sec 444(1A))

It is regarded as a more serious offence when a parent knowingly allows a child to be absent from school without authorisation (section 444(1A), EA 1996). In such
circumstances, the LA will need to show that the child failed to regularly attend school without authorisation, and that the parents knew and failed, without reasonable justification, to ensure that their child regularly attended school.

The EA 1996 does not define “reasonable justification” but case law tells us that it is to be approached as a perfectly understandable English expression and that it was unnecessary for every single avenue to be explored to ensure that a child received “schooling”, as that was immaterial to attendance at school. ‘Reasonable justification” seems to be a question of fact relating to the child’s attendance at school and is, therefore, to be looked at in that context.