Attendance legislation

The purpose of this section is to provide an overview of the legislative framework within which the Local Authority, schools and parents need to fulfil their responsibilities for school attendance. The Attendance Lead should ensure that key messages about the law are regularly provided to all members of the school community to ensure that they understand what this means for them.

The overarching message is that ‘Attendance is everyone’s business’

What are a school’s legal responsibilities for managing school attendance?

The law requires:

All schools to have an admission register and an attendance register.
That school governing bodies, academy trusts, and other school proprietors have regard to the statutory guidance ‘Keeping Children Safe in Education’.
Schools to put in place appropriate safeguarding responses for children who go missing from school.
All schools to notify the Local Authority (LA) when a pupil’s name is to be deleted from the admission register.
All schools (including academies) to inform the LA of any pupil who fails to attend school regularly, or has been absent without the school’s permission for a continuous period of 10 days or more

School day and school year

From September 2022, The DfE document ‘Working Together to Improve Attendance’ will be the non-statutory advice that all schools, trusts, and governing bodies of maintained schools should follow which includes an expectation that all schools develop and publish a school attendance policy. All schools’ policies will be expected to cover attendance expectations, named attendance staff contacts, day-to-day attendance management processes, their strategy for using attendance data, their strategy for reducing persistent and severe absence, and the point at which sanctions will be used.

School day:

Every school day must have two sessions divided by a break The Education (Pupil Registration) (England) Regulations 2006 (legislation.gov.uk) supported by The Education (School Day and School Year) (England) Regulations 1999 (legislation.gov.uk)
The length of each session, break and the school day is determined by the school’s governing body
The governing body has the power to change the timings of the school day
There is no requirement to consult parents

School week:

From September 2023, in line with the DfE information note on the length of the school week, all schools are expected to be operating a 32.5 hour week.

School year:

Schools must meet for at least 380 sessions or 190 days during any school year

If a school is prevented from meeting for one or more sessions because of an unavoidable event, it should find a practical way of holding extra sessions. If it cannot find a practical way of doing this, then it is not required to make up the lost sessions.

Key definitions

Who is a parent (under Education law?)

Section 576 of The Education Act (1996) defines a parent as:

All natural parents, whether they are married or not.
Any person who has parental responsibility for a child or young person; and,
Any person who has care of a child or young person i.e., lives with and looks after the child.

When addressing concerns about pupil attendance, it is important that staff investigate and fully understand the family circumstances to ensure all parents as defined by The Education Act (1996) are identified. The Local Authority and school will need to decide who comes within the definition of parent in respect of a particular pupil when using the legal measures, but generally, parents include all those with day-to-day responsibility for a child.

It is important that staff and parents understand that the definition of a parent under The Education Act (1996) is wider than The Children Act (1989) definition of parental responsibility.

Statutory school age

A child is of statutory school age from the first full term after they reach their 5th birthday until the last Friday in June in the academic school year that the child reaches the age of 16.

Therefore, if a child turns 5 between:

1st January and 31st march, they are of statutory school age on 31st March.
1st April and 31st August, they are of statutory school age on 31st August.
1st September and 31st December, then they are of statutory school age on 31st December.

The legal responsibility for parents to ensure regular attendance at school or otherwise continues up to the last Friday in June in the academic year that the child reaches 16 years of age. The Education Act (1996) (Section 8) in addition: Statutory Instrument 1997 No. 1970 fixes the school leaving date as the last Friday in June in the school year in which pupil obtains the age of 16 years.

Persistent absence

A pupil becomes a ‘persistent absentee’ (PA) when their attendance drops to 90% or below for any reason whether the absences are authorised or not. Over a full academic year this would be 38 sessions (19 school days; equivalent to 1 day or more a fortnight across a full school year). Absence at this level is causing considerable damage to a child’s educational prospects.

Severe absence

A pupil becomes a ‘severe absentee’ (SA) when their attendance drops to 50% or below for any reason whether absences are authorised or not. Over a full academic year this would be 190 sessions (95 days; equivalent to 2.5 days per week). Absence at this level would make it impossible for pupils to keep with schoolwork.

Statutory offences

If a registered pupil of compulsory school age fails to attend school regularly, the parent could be guilty of an offence under Section 444 of The 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 under The Education Act (1996):

Section 444 (1): 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 proved to the magistrate that is a lack of regular attendance. Sanctions can include a fine of up to £1,000
Section 444 (1A): 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.

School attendance offences are criminal offences, and the Local Authority must prove the case using the ‘beyond reasonable doubt’ threshold based on the evidence provided by the school.

Parental responsibility

What is a parent’s responsibility in law?

Section 7 of The Education Act (1996) states that:

The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable –

(a) to his age, ability and aptitude, and

(b) to any special educational needs he may have, either by regular attendance at school or otherwise.

This means that the parent of a child registered at a school has a legal duty to ensure the child’s regular attendance. Failure to fulfil this duty is an offence under Section 444 of The Education Act (1996) and could result in a penalty notice or prosecution.

Parental responsibility measures

Education supervision orders (ESO): Section 447, The Education Act (1996)

Education Supervision Orders were introduced in Section 36 of The Children Act (1989) and, as with other Children Act Orders, are made following application to the Family Proceedings Court. An Education Supervision Order can only apply when a child is of statutory school age and will put a child under the supervision of the local authority, with a similar meaning and status to other Supervision Orders within the Act.

The intention is to ensure that a child who is subject to an ESO receives “efficient full-time education suited to his or her age, ability, aptitude and any special educational needs and that sufficient support, advice and guidance are provided to the parents and the child.”

An ESO gives the LA the right to advise, assist, befriend and give directions to the child and his parents. In all cases before instituting legal proceedings under Sections 443/444 of The Education Act (1996), the LA must consider whether an ESO is appropriate. This will occur in all cases even where the parent’s record of co-operation is poor.

Fixed penalty notices

Following the implementation of The Anti-Social Behaviour Act (2003), it is possible that certain cases of unauthorised absence can be dealt with by way of a penalty notice.

Penalty notices offer a means for swift intervention which the County Council will use to combat truancy problems before they become entrenched. The local authority Code of Conduct provides that the power to use penalty notices is applied consistently and fairly and that suitable administrative arrangements are in place.

A parent of a child of compulsory school age, whose attendance has been unsatisfactory, may be required to pay a penalty notice, currently £80.00 if paid within 21 days or £160.00 if paid within 28 days.

If a parents fail to pay a fixed penalty notice, the case reverts back to a Section 444 (1) of The Education Act (1996) offence and parents/carers will face prosecution in the Magistrates Court.

Magistrates Court summons