Absence and the legal framework
Section 7 of The Education Act (1996) places upon parents/carers a legal duty to ensure that their child of compulsory school age ‘regularly’ attends the school at which they are registered.
EDUCATION ACT 1996: Section 7 – Duty of parents to secure the education of children of compulsory school age.
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.The key term to understand here is ‘regular’ attendance. After much debate, the UK Supreme Court in deciding the case of Isle of Wight Council v Platt [2017] UKSC 28 upheld that ‘regular attendance’ means attending in accordance with the rules of the school.
What does this mean?
Your school rules are set out in your Attendance Policy. This reinforces the need for all schools to have an attendance policy that clearly and explicitly sets out their attendance expectations. The underlying expectation here is that pupils should attend in line with the school rules (as per attendance policy), this means that:
pupils are expected to attend school on every day that the school is open to them (Except where absence is evidenced and considered unavoidable, for example where the pupil has an evidenced medical need)
Term time absence (holiday in term time)
The following videos have been put together to support schools with their term time absence management.
Video 1 – Describes a suggested penalty notice process for Devon schools
Video 2 – Explores the Devon County Council penalty notice request process and forms
The Education (Pupil Registration) (England) Regulations (2006)
Regulation 7 Leave of absence
The three important elements of this regulation are:
- Requested in advance
- From the parent with whom child normally resides
- Evidencing Exceptional circumstances
Above is the starting legal position regarding term time absence. This means that for a request to be authorised by the school then it must be evidenced that the request meets the criteria of ‘exceptional circumstances.’ The law does not grant parents/carers a right to take their children out of school during term time. Only Head Teachers (or their delegates) can authorise an absence. The Government is very clear that a family holiday is NOT considered an exceptional circumstance.
Communication
Schools should ensure that they clearly communicate to parents/carers (via policy, website, newsletters, or letters etc) the following:
- How the school expects parents/carers to request a term time absence.
- Term time absence is not an automatic parental right and is governed by the school receiving suitable evidence detailing the ‘exceptional circumstance’. Without evidence of a suitable ‘exceptional circumstance’ the school cannot consider authorising the absence.
- There is an expectation that schools refer unauthorised term time absence to the Local Authority for the consideration of the issue of penalty notice/s.
Penalty Notices
When can a school refer for a Penalty Notice? **********UPDATED**********
- Minimum of 10 sessions of unauthorised term time absence
- Referrals need to be made in a timely manner. The penalty notice process is a legal process and subject to legal time constraints. Try to complete your request as soon as possible after the leave has been taken (and ideally shortly after 5 school days of the pupil returning).
The importance of the legal warning
The DCC penalty notice Code of Conduct requires evidence that the family have received a suitable legal warning prior to taking the absence.
There are 3 easy ways to ensure that you have the requirement for the legal warning covered.
- S2 Absence request form (correctly completed and returned to parents by name)
- Unauthorised term-time absence letter (sometimes referred to as holiday refusal letter)
- DCC bi-annual term-time holiday warning letter
For DCC to successfully issue a penalty notice. it needs to be evidenced that each individual parent/carer (by name) has had the warning in writing (or email). The easiest way of doing this is to send each individual parent (by name) the Unauthorised term time absence letter.
Suggested steps in a school penalty notice process:
Step 1
- School issues all parents/carers the DCC Bi annual term time holiday warning letter. It is recommended that schools issue this letter in September and again in April. The letter should be addressed to both parent/carers of the child. This letter is recommended as it could support the school in issuing challenge where parents/carers have tried to sidestep the S2 request process or where the reasons for absence stated may not be considered genuine.
Step 2
- Parents/carers complete the most recent S2 and submits to the school with their evidence of the exceptional circumstance (made in advance and not completed retrospectively)
- School considers if the evidence of the exceptional circumstances’ requirement is met.
- School makes decision to authorise or not.
Step 3
- School returns the completed S2 with their decision (again making sure that this form is completed correctly remembering that this form is an important part of your evidence if the penalty notice goes unpaid and is referred to the Magistrates Court).
- It is suggested that the school sends the Unauthorised term time absence letter (with that important legal warning) along with the S2 to the family advising that the absence has not been authorised and if it is taken the parents/carers make themselves liable to the penalty notice process.
- School retains copies of S2 and letters with the legal warning evidence.
Step 4 ***UPDATED***
- Family takes the UNAUTHORISED leave, and the school updates registers accordingly.
- Upon return to the school, the school waits for 1 week and collects 5 days of attendance marks following the absence.
Step 5 ***UPDATED***
One week (5 days) following the pupil return after the absence, school completes these forms:
attaching the following:
- Copy of fully completed S2
- Copies of letters containing the legal warning
- Registration Certificate (ensuring that the dates match exactly the dates cited on PR3, this is very important).
***UPDATED***
When completing the referral, the school must show the absence inside of 100 cited sessions.
The 100 cited sessions is really important and must be followed at all times unless the school has been closed for half a day within the cited date range and SIMS/ARBOR etc will not allow 100 sessions. In these limited circumstances please contact and advise the DCC Penalty Notice Officer.
Example of 100 sessions – family takes the holiday, school waits for 5 days attendance following the return. School then counts back to establish the 100 cited sessions. Print a registration certificate to confirm the cited period is100 days and then submit correct paperwork.
Schools must refer for a Penalty Notice 5 days after student returns with the only 2 exceptions being:
- Year Reception/1 child where 100 sessions backwards would include a period of time where they were not yet compulsory school age
- Year 7 where going back would cite into primary school and primary school unwilling to share attendance data.
In the above 2 exceptions rather than count back for the 100 sessions, the school would need to count forward and wait for the 100 sessions to have passed (we recommend adding something into a calendar otherwise it’s likely to be forgotten). In these situations, the school could alternatively request to proceed for a warning letter rather than a Penalty Notice. if this is the case they need to put their request and reason for the request on the reverse of the PR1.
Where to send the request
Since the start of the 2024 – 2025 academic year, Devon County Council are using a new online system for schools to submit all penalty notice requests.
Schools would have been sent a sign up email to their schools generic admin email address, but if schools have not received this please call 01392 383189 and the team will help sort it.
The link to sign up and help schools navigate this new system can be found here: Fixed Penalty Notice.
Please note, we will not be accepting paper referrals sent by post or emailed into the shared email anymore. The new system allows schools to do this all electronically.
It is vital that the information provided is accurate and timely.
Devon County Council Code of Conduct: Devon County Council Penalty Notice Code of Conduct