Table of Contents
School Attendance Orders
Consultation Launched New Home Education Guidance
April 10th 2018: The Department for Education has published revised draft home education guidance for consultation, together with a "call for evidence" on other possible changes. The deadline for responding is July 2nd 2018. Read more here.
A School Attendance Order is issued when the authority is not satisfied that education is being provided otherwise than at school and where the authority considers it expedient that the child should attend school. Government Guidelines say that a school attendance order should only be served after all reasonable steps have been taken to try to resolve the situation. In most cases the SAO is threatened but not actually issued.
It is only when a formal notice is issued under s 437 that a local authority is required to be satisfied. In all other cases the LA will simply be asking for information (which some people still refer to as "informal enquiries"). Similarly it is only at the stage of the formal notice under s 437 that local authorities must ask for "evidence"; again in all other cases the LA will simply be asking for information.
Government Guidelines remind us that asking parents for further information "is not the same as a notice under section 437(1), and is not necessarily a precursor for formal procedures."
The Education Act 1996 states that before issuing the SAO, the local authority must serve a notice on parents if it appears that a child is not receiving education. After the formal notice period expires, if the local authority is still not satisfied that the child is receiving education otherwise than at school, the authority should write to the parent indicating that it intends to issue a School Attendance Order. The letter of intention will specify a particular school. The law requires the authority to consult with the governing body of the school and the headteacher before the school is named on the letter of intention. Case law on School Attendance Orders may be found on our page about Lord Donaldson's review of the Phillips vs Brown case and also here
Government Guidelines state that "at any stage following the issue of the Order, parents may present evidence to the local authority that they are now providing an appropriate education and apply to have the Order revoked". Where the authority acts in clear breach of these guidelines, additional public expenditure will be incurred by the authority's refusing to accept evidence after the Order has been issued and a formal letter of complaint may be sent to the court by the defendant's legal representative.
Magistrates court, legal aid, expert witness
Should the authority choose to prosecute if a family fails to comply with the SAO, the family will have the defence that the child is receiving education otherwise than at school. It is up to the parent how the evidence is presented. The case will be heard in the magistrates court and if the prosecution is successful the magistrate may impose a fine and/or a parenting order. Legal Aid is still available at present for parents requiring a solicitor in connection with School Attendance Orders since breaching the order (ie failing to register the child at school as directed) is a criminal offence rather than a civil offence. Legal Aid is currently awarded to people on means-tested state benefits and is otherwise awarded on a sliding scale depending on the parents' income. Criminal Legal Aid Eligibility [GOV.UK checked October 2018] Timing and location are important because legal aid will not be available before notification of prosecution and legal aid is highly restricted for appeals. In addition, legal aid may not cover travel costs for the legal representative. Parents may make enquiries with a legal firm prior to prosecution but will not normally be able to obtain funded specialist legal help until the prosecution has actually begun.
When seeking a law firm it will be necessary to establish whether there is a legal aid contract for criminal cases in place. Ideally the solicitor will specialise in education and have some knowledge of alternative or non-standard education. If there is no legal aid contract for criminal cases an education solicitor may still be able to offer initial advice on legal aid. However it is rare to find a solicitor with knowledge of home education law or a solicitor who grasps the family's right to choose alternative educational approaches such as autonomous or self-directed learning. It is possible to get the service of an expert witness covered by legal aid. In order to call an expert witness for the defence, the defence solicitor would first have to get funding from the Legal Services Commission in the form of a Representation Order. An application for the representation order is is made to and decided by the magistrates' court. Having obtained the RO, if a case merits expert evidence, the defence solicitor has to apply to the Legal Services Commission for "prior authority" to instruct an expert. If prior authority is granted the RO covers the costs of the expert. Read more about using expert witnesses in legally aided cases here
Parental Duties set out in law
The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable—
(1) to his age, ability and aptitude, and
(2) to any special educational needs he may have,
either by regular attendance at school or otherwise.
Prior to serving a notice under section 437
2.8 Prior to serving a notice under section 437(1), local authorities are encouraged to address the situation informally. The most obvious course of action if the local authority has information that makes it appear that parents are not providing a suitable education, would be to ask parents for further information about the education they are providing. Such a request is not the same as a notice under section 437(1), and is not necessarily a precursor for formal procedures. Parents are under no duty to respond to such enquiries, but it would be sensible for them to do so.
2.10 A school attendance order should be served after all reasonable steps have been taken to try to resolve the situation. At any stage following the issue of the Order, parents may present evidence to the local authority that they are now providing an appropriate education and apply to have the Order revoked. If the local authority refuses to revoke the Order, parents can choose to refer the matter to the Secretary of State. If the local authority prosecutes the parents for not complying with the Order, then it will be for a court to decide whether or not the education being provided is suitable and efficient. The court can revoke the Order if it is satisfied that the parent is fulfilling his or her duty. It can also revoke the Order where it imposes an education supervision order.
2.11 Where the authority imposes a time limit, every effort should be made to make sure that both the parents and the named senior officer with responsibility for elective home education in the local authority are available throughout this period. In particular the Department recommends that the time limit does not expire during or near to school holidays when there may be no appropriate point of contact for parents within the local authority.
Suitable efficient education
2.3 The responsibility for a child’s education rests with his or her parents. An “efficient” and “suitable” education is not defined in the Education Act 1996 but “efficient” has been broadly described in case law as an education that “achieves that which it sets out to achieve”, and a “suitable” education is one that “primarily equips a child for life within the community of which he is a member, rather than the way of life in the country as a whole, as long as it does not foreclose the child’s options in later years to adopt some other form of life if he wishes to do so”.
School Attendance Order
(1) If it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education.
(2) That period shall not be less than 15 days beginning with the day on which the notice is served.
(3) If (a)a parent on whom a notice has been served under subsection (1) fails to satisfy the local education authority, within the period specified in the notice, that the child is receiving suitable education, and (b) in the opinion of the authority it is expedient that the child should attend school,
the authority shall serve on the parent an order (referred to in this Act as a “school attendance order”), in such form as may be prescribed, requiring him to cause the child to become a registered pupil at a school named in the order.
Notice of intention to serve the order
(2) Before serving the order the authority shall serve on the parent a notice in writing—
(a) informing him of their intention to serve the order,
(b) specifying the school which the authority intend to name in the order and, if they think fit, one or more other schools which they regard as suitable alternatives
Consulting the school
(5) Before deciding to specify a particular maintained school in a notice under section 438(2) a local education authority shall consult—
(a) the governing body, and
(b) if another local education authority are responsible for determining the arrangements for the admission of pupils to the school, that authority
(6) Where a local education authority decide to specify a particular maintained school in a notice under section 438(2) they shall, before serving the notice [our emphasis] , serve notice in writing of their decision on
(a) the governing body and head teacher of the school
Revoking the School Attendance Order
(2) If at any time the parent applies to the local education authority requesting that the order be revoked on the ground that arrangements have been made for the child to receive suitable education otherwise than at school, the authority shall comply with the request, unless they are of the opinion that no satisfactory arrangements have been made for the education of the child otherwise than at school.
(3) If a parent is aggrieved by a refusal of the local education authority to comply with a request under subsection (2), he may refer the question to the Secretary of State.
Defence of "education otherwise than at school"
(1) If a parent on whom a school attendance order is served fails to comply with the requirements of the order, he is guilty of an offence, unless he proves that he is causing the child to receive suitable education otherwise than at school.
(2) If, in proceedings for an offence under this section, the parent is acquitted, the court may direct that the school attendance order shall cease to be in force.
(4) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Revoking the School Attendance Order
Deletions from Admission Register
8.—(1) The following are prescribed as the grounds on which the name of a pupil of compulsory school age shall be deleted from the admission register—
(a)where the pupil is registered at the school in accordance with the requirements of a school attendance order, that ... the order is revoked by the local education authority on the ground that arrangements have been made for the child to receive efficient full-time education suitable to his age, ability and aptitude otherwise than at school
Therefore where the child has been registered as a pupil with a school following a School Attendance Order, any parent wishing to home educate must first write to the local authority and ask for the SAO to be revoked on the grounds that arrangements have been made for the child's education. The LA may ask for further information. The order must be revoked before the child's name can be successfully deleted from the school roll.
School Attendance Orders and Academies
Received from DfE July 2014: "The law (section 4 and sections 437-439 of the Education Act 1996) allows academies to be named in a school attendance order but does not require them to comply with it. The department did not want this to be the case and so for academies that opened after August 2010 we included a provision within their funding agreements that permit the Secretary of State to direct an academy to comply with a school attendance order. You can find this provision in paragraph 2.31 of the new model funding agreement and you can look up the funding agreements of older academies on this site. (You are likely to find the provision in paragraph 4(a) of annex B or annex 1 to the funding agreement.)"
"In the minority of academies without this provision (the earliest academies: about 250 nationally), SAOs only apply if the academy consents to be named. However, the local authority should note that academy funding agreements also allow it to apply to the Secretary of State, through the Education Funding Agency, for him to direct a named child to an academy, whether or not that academy has the specific reference to an SAO within its funding agreement."
Education Supervision OrdersSection 36 of the Children Act 1989 empowers LAs to apply to the courts for an Education Supervision Order with respect to a child instead of or as well as prosecuting the parent for non-compliance with a School Attendance Order. Section 36 sets out the effect, duration, extension and discharge of ESOs. Section 36 also lists offences against the ESO, the measures to be taken when a child fails to comply, information to be given to supervisors, and the contact which the supervisor should be allowed with the child, which are all further explained in Schedule 3 Part III Children Order 1989 Technical details concerning the application, extension, and ceasing of ESOs can be found in Chapter 2 Family Procedure Rules 2010
Prosecutions for Failure to Secure Regular Attendance Registered Pupil under s.444 Education Act
Term time holiday judgment, High Court May 2016 https://edyourself.wordpress.com/2016/06/02/isle-of-wight-v-platt-high-court-judgment/
There are a number of significant differences between prosecution under s.437 of the Education Act 1996 for breaching a School Attendance Order (ie failing to register a child with the named school in the order) and prosecution under section 444 of the Education Act 1996, which deals with sanctions for failure to secure the regular attendance of a registered pupil. Unfortunately, the publicly available version of s444 is NOT up to date since this section has been modified a number of times by new laws and regulations eg this from 2006.
However, the main thrust of s 444 is that where a child is a registered pupil on the school roll and parents are prosecuted for the child's non-attendance, the onus is on the parent to prove "reasonable justification" for the non-attendance, and the legal definition of this is quite stringent. (An alternative defence would be to challenge the validity of the prosecution in cases where a child has been registered at a school by someone other than the parent.) It is not a defence under s 444 for a parent to prove that the child is receiving suitable education otherwise than at school. Parents may offer the defence of education otherwise than at school only in cases where the child is not on a school roll.
(In cases where a parent has been served with a School Attendance Order under s.437 and has complied with the order by registering the child with a school, there could subsequently be a prosecution under s.444 if the child failed to attend regularly.)If a child of compulsory school age fails to attend regularly at a school at which they are registered, or at a place where alternative provision is provided for them, the parents may be guilty of an offence and can be prosecuted by the local authority. Only local authorities can prosecute parents (Section 446 of the Education Act 1996) and they must fund all associated costs. Local authorities should consider the Attorney General’s Guidelines for Crown Prosecutors in all prosecution cases. Section 444 has two separate but linked offences: Section 444(1): where a parent fails to secure the child’s regular attendance; and section 444(1A) where a parent knows that the child is failing to attend school regularly, and fails to ensure the child does so. Section 444ZA7 applies the offence to where parents fail to secure the regular attendance of their child at a place where the local authority or governing body has arranged alternative provision. Penalty notices can only be issued by a head teacher or someone authorised by them (a deputy or assistant head), a local authority officer or the police. All schools and the police must send copies of penalties issued to the local authority. Penalty notices can be issued to each parent liable for the attendance offence or offences. Local authorities must conduct all investigations in accordance with the Police and Criminal Evidence (PACE) Act 1984.
It should be noted that prosecution for absence or truancy is NOT automatic. Section 444A offers parents the option of paying a fixed penalty notice within a period of 28 days. Penalty notices are fines of £60/£120 imposed on parents. If they do not, a prosecution MAY occur. A fixed penalty notice can be issued by a local authority, a police constable, or a headteacher. Practice may vary between different LAs who must draw up their own code of conduct. Where a penalty notice is not paid the LA must issue proceedings or withdraw the notice. As the Local Government Lawyer says "This effectively requires the local authority to consider whether or not the parent's conduct is sufficiently serious to warrant commencing criminal proceedings." To be clear, this will then be a criminal prosecution under s 444(1) or (1A) for failing to ensure the regular attendance of a registered pupil (not for non-payment of fines)
Representing Yourself in CourtPeople representing themselves in court are known as "litigant in person". This practice is likely to increase following the huge cuts to the legal aid budget as a result of the Legal Aid Sentencing and Punishment of Offenders Act 2012. http://www.barcouncil.org.uk/media/203109/srl_guide_final_for_online_use.pdf
There are 2 kinds of exclusion - fixed period (suspended) and permanent (expelled). A fixed period exclusion is where your child is temporarily removed from school. They can only be removed for up to 45 school days in 1 school year. If a child has been excluded for a fixed period, schools should set and mark work for the first 5 school days. If the exclusion is longer than 5 school days, the school must arrange full-time education from the 6th school day. Permanent exclusion means your child is expelled. The local council must arrange full-time education from the 6th school day.