Practical Law Public Sector addresses the questions that schools may ask local authorities regarding day-to-day school management and sets out the legal issues to consider when responding:
This FAQ examines what a local education authority can do in a case of persistent unauthorised absence or poor behaviour at school. For all our school hotline queries, please see Practice note, Schools hotline FAQs.
Q: What can a local education authority do in a case of persistent unauthorised absence or poor behaviour at school?
A: A pupil is currently considered to be “persistently absent” from school if they do not attend at least 15% of lessons without a good reason such as a long-term health condition (DfE: Reducing absence – ensuring schools intervene earlier (July 2011)). Persistent absence levels will be taken into account in Ofsted inspections. In order to tackle persistent unauthorised absence or poor behaviour, a Local Education Authority (LA) may exercise one or more of its legal powers (though whichever power they exercise, LAs should liaise closely with the school, child and parents in question):
- School Attendance Order: If it appears to the LA that a child of compulsory school age is not receiving a suitable education, either by regular attendance at school or otherwise, then it must consider issuing a School Attendance Order (SAO) (section 437, Education Act 1996 (EA 1996)). An SAO requires the child’s parents to register their child at a named school and continues in force until it is revoked by the authority or by the parent in requesting its restoration.
- Prosecution and/or Education Supervision Orders: If a pupil’s parent fails to comply with an SAO or fails to ensure their child’s regular attendance at a school, then the parent can be prosecuted (sections 443 and 444, EA 1996). A parent who is found guilty is liable on summary conviction to a fine not exceeding level 3 on the standard scale. For an example of a case on prosecution, see Legal update, Teenager’s chaotic lifestyle no defence to a school attendance prosecution under section 444(2A) of the Education Act 1996 (High Court). Before instituting prosecution proceedings, an LA should consider whether it is appropriate to apply for an Education Supervision Order (ESO) (section 447, EA 1996) and may apply for such an order at the same time as carrying out a prosecution. An ESO is a court order which appoints the LA to supervise a child’s education either at a school or at home for a specified period of time.
- Penalty notices: LAs (or schools) may issue penalty notices to each parent of a child of compulsory school age who fails to ensure:
- their child’s regular attendance at school; or
- that their excluded child is not in a public place during the first five days of exclusion.
(Section 23, Anti-social Behaviour Act 2003, Education (Penalty Notices) (England) Regulations 2007 (SI 2007/1867) (as amended by the Education (Penalty Notices) (England) (Amendment) Regulations 2013 (SI 2013/757) (2007 regulations).)
Penalty notices provide an alternative to prosecuting a parent under the EA 1996, which can be a lengthy and costly process. Full payment of a penalty enables the parent to discharge potential liability for conviction for that offence.
If issued with a penalty notice, parents are liable to pay £60 if they pay within 21 days; or £120 if they pay within 28 days. These timescales were reduced from the previous timescales of 28 and 42 days in order to allow LAs to act faster on prosecutions.
Parents have the right to choose not to pay the penalty notice and instead have their case heard in court. If parents do not pay, the LA must decide whether to withdraw the notice or to go on and prosecute.
Alternatively, the LA may withdraw an unpaid penalty notice if it:
- was issued outside the terms of the local authority local code of conduct (which sets out measures to ensure consistency in the issuing of penalty notices);
- was issued to the wrong person; or
- contains material errors.
- Parenting contracts: Parenting contracts can be used in cases of irregular school attendance. A parenting contract is a formal, written, signed agreement between parents and either the LA or the governing body of a school. A parenting contract should contain a statement by the:
- parents, that they agree to comply for a specified period with whatever requirements are set out in the contract; and
- LA, or governing body, agreeing to provide support to the parents for the purpose of complying with the contract.
(Section 19, Anti-social Behaviour Act 2003.)
Parenting contracts are voluntary but any non-compliance should be recorded by the school or LA as it may be used as evidence in court when an application is made for a parenting order (see below).
The LA or governing body should fund any support required to implement a parenting contract (such as referral to parenting classes) and provide information to parents about other types of support available such as details of national and local agencies and helplines.
- Parenting orders: Parenting orders are court orders imposed with or without parental agreement (section 8, Crime and Disorder Act 1998). In cases of long periods of non-attendance, parenting orders would generally be obtained as an ancillary order following a successful prosecution by the LA for irregular attendance or breach of a school attendance order. Parenting orders require parents to attend parental guidance sessions.