1. General and Background
Section 23(1) of the Anti-Social Behaviour Act 2003 and Section 103 of the Education and Inspections Act 2006 introduced new powers to Section 444 of the Education Act 1996 that enable local education authorities to issue Penalty Notices.
Penalty Notices can be used as an alternative to prosecution under Section 444 and enables parents to discharge potential liability for conviction for that offence by paying a penalty.
This Code of Conduct has been drawn up in line with The Education (Pupil Registration) (England) Regulations 2006, the Education (Penalty Notice) (England) Regulations 2007 amended by The Education (Penalty Notices) (England) (Amendment) Regulations 2013 and in consultation with Islington Schools.
The issuing of all penalty notices is based on clear threshold criteria which will need to be applied consistently and equitably across Islington’s schools.
Any person authorised to issue a notice in Islington must comply with the guidance set out in the code of conduct.
This Code of Conduct considers the expectations of the Department for Education on the improvement of attendance and the provisions in Ofsted’s school inspection framework, in which there is an expectation that schools use all available means in their attendance strategy to secure best outcomes for pupils, including the use of legal sanctions.
All references to ‘school’ in this Guidance refers to ‘schools and academies’ and should be read in conjunction with the Islington Guidance for Schools on Pupil Leave of Absence in Term Time.
2. Who May Issue a Penalty Notice?
The Local Authority, schools and the police have the power to issue Penalty Notices. From 2 September 2013, the London Borough of Islington and schools may issue penalty notices following irregular attendance at school. Schools must make clear to us whether they will be opting in or out of issuing penalty notices directly. Schools must comply with this Code of Conduct and must give notice to the Local Authority and use the relevant template letter for schools.
Statutory guidance allows Penalty Notices to be issued by a head teacher or someone authorised by them (a deputy or assistant head). In the case of academies, the Principal may delegate this function to their deputy or assistant principals, however described.
3. Meaning of Parent
The legal definition of a parent is contained in Section 576 of the Education Act 1996 and refers to any adult who is a natural parent, someone with Parental Responsibility or someone with whom the child lives and who looks after the child, irrespective of their relationship with the child.
4. Who will receive a Penalty Notice?
A Penalty Notice will be issued to each parent of each child whose attendance is poor, whose child was taken on an unauthorised term time holiday or term time leave, or in the cases of exclusion, where the pupil is present in a public place during the first five days.
Head teachers have the discretion to authorise term time leave and this should be authorised as an exception rather than the rule. There is no entitlement of up to two weeks term time leave for each academic year.
Schools can issue Penalty Notices for unauthorised term time leave without a prior court warning.
Schools will consider:
• The pupil’s overall attendance pattern and the number of absences
• Whether the school had previously informed all parents in writing of the leave in term time policy and the requirement to apply for permission and the legal consequences of taking an unauthorised leave.
The pupil must have returned to school and the school has deemed and marked the absence with code “G” unauthorised leave, before the Penalty Notice or Notices can be issued.
A maximum of one Penalty Notice may be issued per parent, per child, in a 12 calendar month period.
Where two parents take three children on unauthorised leave, a total of six notices may be issued.
A Penalty Notice is a method by which a parent may discharge potential liability for conviction of an offence for the period referred to in the Penalty Notice, either under:
• Section 444 of the Education Act 1996
• Section 105 of the Education and Inspections Act 2006
5. Payment of Fines
The amount of the penalty notice to be paid is:
• £60 if paid within 21 days of receipt of the Penalty Notice
• £120 where the lesser fine of £60 has not been paid within 21 days, but where the higher amount is paid within 28 days of receipt
Payment is made to the Access and Engagement Service (AES), 222 Upper Street, Islington, London N1 1XR.
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.
Revenue generated from the fines is used to cover enforcement. If the revenue is greater than enforcement costs, that sum is held by central government. Schools do not receive any revenue from Penalty Notices.
Schools must not accept payment of penalty notices. The payment must be paid direct to the Local Authority using our online payment system. Details of the online payment system is included with each penalty notice.
The AES will maintain a record of all Penalty Notices.
If a Penalty Notice is paid within 28 days, parents will discharge their liability for the period of absence in the Notice. If attendance continues to be poor, an AES officer will convene a PACE (Police and Criminal Evidence Act) meeting with the parents and a decision would be made at the meeting as to whether the case should proceed either to:
• Magistrates Court
• Family Proceedings Court
If attendance continues to be at an unacceptable level there may also be a review period. The ultimate decision for statutory action will be made by Legal Services.
6. Unpaid Penalty Notices
If the Penalty Notice is not paid in full by the 28th day, we will instigate a prosecution. The AES may use the fact that a Penalty Notice was issued and remains unpaid as evidence. Unlike other Penalty Notice Schemes, the prosecution would not be for non-payment of the fine, but for the original offence of failing to ensure a child’s regular attendance at school.
7. Circumstances in which Penalty Notices may not be issued
If the parents choose not to cooperate, or there are many instances of unauthorised absence, the AES may decide to issue proceedings in the Magistrates’ Court under Section 444 of the Education Act 1996, and dispense with the issue of a Penalty Notice. The decision will be made by the AES Manager after consideration of the case.
Section 103 of the Education and Inspections Act 2006 places a duty on parents in relation to an excluded pupil. A parent has to ensure that their child is not present in a public place during school hours without reasonable justification during the first five days of each and every fixed period or permanent exclusion.
The days of exclusion when this duty applies are known as ‘specified days of exclusion’ and will be detailed in a notice given to the parent under section 104 of the 2006 Act. The parent is responsible for the child during the specified days upon receipt of the notice.
Sections 100 and 101 of the Education and Inspections Act 2006 place a duty on the school or Local Authority to make provision for the excluded child’s full time education from the sixth day of a fixed period exclusion or permanent exclusion in a school year. Once provision is made, the parent’s duty to ensure that their child is not in a public place becomes a duty to ensure the child attends the provision (the duty under Sections 444(1) and 444(1A) of the Education Act 1996).
Section 105 of the Education and Inspections Act 2006 allows for a penalty notice to be issued to a parent committing an offence under section 103 (failing to ensure their child is not in a public place on the days specified on the notice given to them). The notice allows the parent to pay a penalty as a way of discharging any liability for the offence. The parent must be notified by the school at the time of the exclusion of their duty and the days to which it relates.
9. When is it appropriate to issue a Penalty Notice?
Before being issued with a penalty notice a parent will have always receive a warning detailing the consequences of their child’s continued unauthorised absence, or the taking of leave in term-time without authorisation, or in the case of exclusion, their child being in a public place within the first five days.
This warning will be issued by:
• The AES or by schools by letter in non-attendance cases
• School correspondence, such as a newsletter, in cases of parents taking children on term-time holidays without authorisation
• the initial exclusion notification letter from the school if the child has been excluded
A penalty notice may be issued if:
• a registered pupil has been absent for more than 10 sessions in any 12 week period, or
• there has been a period of unauthorised absence (not less than 10 school sessions) which has been specifically condoned by the parent e.g. a parent choosing to take their child on a term-time holiday without authorisation
• a registered pupil has been late (after the close of registration) for 12 or more sessions in any six week period and the Local Authority is satisfied that there is sufficient evidence to show the parent has committed an offence under s444(1) or s444(1A) of the Education Act 1996, and a formal warning of the possibility of a penalty notice being issued has been served either by the school or the AES, and a penalty notice has not been issued in the past 12 months for the same child
• an offence has been committed under S103 of the Education and Inspections Act 2006 where a pupil had been found in a public place without reasonable justification in the first five days of an exclusion
• a pupil has been stopped during a truancy patrol but only after due consideration when all the facts are known and the threshold for serving the notice has been met and agreement is reached with AES Manager to ensure that it is appropriate to serve the notice.
If a child has received a penalty notice in the previous 12 months, alternative processes are necessary, for example prosecution in the Magistrates Court for the period in question or an application to the Family Proceedings Court for an Education Supervision Order.
Reasonable justification will be considered in each individual case but will include instances where it is not appropriate to leave a child alone in the home.
Information will be given to anyone stopped on a truancy patrol about the possible support and sanctions used to address non-attendance.
10. Declining to Issue a Penalty Notice and Penalty Notice QSP Reference Number
The AES will determine if it is appropriate to serve a notice by ensuring one is not issued when:
• a prosecution has commenced
• a notice has already been issued
• they are not satisfied that there is sufficient evidence to show the parent has committed an offence under S444(1) or S444(1A) Education Act 1996.
The AES may decline to issue Penalty Notices or Penalty Notice numbers enabling schools to issue a notice if:
• this Code of Conduct has not been adhered to
• there is a need to explore a case further
• there is significant delay in making the request
This provision is in place to deal with instances where the school makes decisions in good faith but may lack all of the information when making the request.
11. Withdrawal of a Penalty Notice
Once issued a penalty notice may only be withdrawn if:
• proof has been established that the penalty notice has been issued to the wrong person
• the notice has been issued outside the terms of this code of conduct
• no offence has been committed
• in the instance of exclusion, reasonable justification was evidenced by the parent.
The Local Authority will refund any payments made for any wrongly-issued Penalty Notice.
Parents with a credible claim not to have received a Penalty Notice will be re-sent the original Notice, allowing time to pay the initial, lower, amount.
Notices are usually issued by second class post are are deemed to have been received within two days.
Penalty Notices must be paid in full and the Local Authority will not accept part payments or payments in instalments.
There is no statutory right of appeal against the issuing of a penalty notice.
The Local Authority will examine any evidence provided that would show that a mistake had been made. Parents will be required to provide documentary evidence to support an argument and must deal directly with the Local Authority and not the school.
13. Operational Details
A. Local Authority Issues Penalty Notice
• Schools will follow up all cases of:
o more than 10 unauthorised absence sessions in any 12 week period
o any unauthorised holiday or leave of absence in term time amounting to 10 unauthorised sessions or more
o 12 or more late arrivals (after the close of registration) in any six week period
• Schools will monitor pupil attendance regularly and agree statutory action with the LA as needed (including the issue of Penalty Notices)
• the LA will maintain a record of all referrals from schools and make an assessment of the individual circumstances at PACE meetings
• in cases of persistent unauthorised absence, parents will be warned by letter from the school of the possibility of statutory action, and if there is any more unauthorised absence a penalty notice will be issued
• in the event of unauthorised holidays or persistent lateness, a penalty notice will be issued directly when the school has already sent a formal warning letter
• schools will have policies to ensure that a parent has received an appropriate warning following unauthorised holidays or persistent lateness and in their exclusion letters advising of the parents’ duty to ensure their child is not in a public place and may receive a penalty notice
• a penalty notice issued by the school will usually be delivered by post but in some circumstances will be delivered by post and by hand
B. School or Academy Issues Penalty Notice
Schools may issue Penalty Notices when:
• They have warned the parents of the possibility of statutory action and sent a copy of the warning to the AES. In cases where parents have asked permission to take a term time holiday, they have issued a decline letter to the parents and sent a copy to the AES
• They have given notice to the Local Authority that it is their intention to issue a Penalty Notice to confirm that they have followed the Penalty Notice Code of Practice and/or Guidance to Schools on Term Time Absence
• They have completed the ‘Notification to LA of issue of Penalty Notice’ form
• They have forwarded a signed Attendance Record signed by the Head teacher or Principal which will be a true copy of the Attendance Register
• A pupil has accrued more than 10 unauthorised absence sessions in any 12 week period
• A pupil has been absent from school due to an unauthorised holiday or leave of absence in term time amounting to 10 school sessions or more
• A pupil has been late 12 or more times (and the school has marked the sessions ‘U’ after the close of registration) in any six week period.
The LA will return to the school or academy the ‘Notice to LA of Intention to issue a Penalty Notice’ with the Penalty Notice QSP Reference number so that the notice can be issued.
Schools must use the Penalty Notice template provided.
C. Following the Issue of a Penalty Notice by School
• The Local Authority will alert the school in cases where Penalty Notices remain unpaid after 28 days
• Schools should monitor the pupil’s attendance regularly and send the Local Authority the appropriate paperwork for court action where Penalty Notices remain unpaid after 28 days
• the Local Authority will maintain a record of all notifications and make an assessment of individual circumstances at the PACE meeting in cases where Penalty Notices are paid by the 28th day but attendance continues at an unacceptable level
14. Good Practice for Schools
Before a Penalty Notice or Penalty Notice QSP reference number is issued, Head teachers and Principals should ensure that:
Parents are aware of the school’s policy on leave of absence and the AES are sent a copy of the notification
Each request for leave of absence is considered on its merits
Special consideration is made for family situations and religious issues
They inform the AES if they decide to issue their own Penalty Notices
Parents are informed of the reasons for refusal of leave in term time and a copy of the decline letter is sent to the AES
Where schools decide to issue their own Penalty Notices, the parents are sent a court warning letter
Exclusion correspondence reminds parents of their duty to supervise their excluded child during the first five days of exclusion
Where schools decide to issue their own Penalty Notices, only head teachers or principals or those authorised by them (assistant or deputy head teachers or principals) may sign Penalty Notices
School registers have the appropriate registration absence code as an extract from the register is required in the event of court action
Attendance Record forms signed by the head teacher or principal are sent to the AES
Requests for the Local Authority to issue Penalty Notices are made within 10 school days of the child’s return to school following unauthorised term time leave
Notice of the school’s intention to issue a Penalty Notice is made within 10 school days of the child’s return to school following unauthorised term time leave
Penalty Notices for poor school attendance should be issued not more than 3 months after the first unauthorised absence
This code of conduct will be reviewed on a regular basis and may be amended depending on the outcome of the previous year’s operation and changes in legislation