The Children’s Wellbeing and Schools Act 2026 introduces compulsory registration of children not in school which is backed up by changes to the School Attendance Order [SAO] process.
- Introduction
- SAO Law What Will Stay Same
- SAO Law What Will Change
- School Space And Court Space
- SAO And Special Educational Needs
- What Happens Next
- Upcoming Judicial Review
- SEND Reforms
WE DO NOT KNOW THE START DATE for the new law; the best guess is some time between 2027 and 2029; these links explains more https://edyourself.wordpress.com/2026/06/04/confusion-over-start-date/ + https://edyourself.wordpress.com/2026/05/29/implementation-date-possibly-2029/
Introduction
When the law on compulsory registration comes into force, we might expect to see an increase in formal investigations, which are the START of the School Attendance Order process.
This is because the new law will give the LA more reasons to go directly to issuing a formal “notice to satisfy”.
However, this does not necessarily mean we will see an increase in actual Attendance Orders or an increase in families registering their child at school. I explain more about this below.
The government has also put forward changes elsewhere to the law on special educational needs which if taken forward will have a further impact on School Attendance Orders where a child has an EHCP.
SAO Law What Will Stay Same
My page on current SAO law (England) is HERE
A School Attendance Order comes at the end of a formal investigation in which the parent has not satisfied the local authority that a child is getting a suitable* education otherwise than at school, for example if the parent has not made any arrangements for home education OR the LA is not satisfied with the arrangements.
*Suitable means suitable to age ability aptitude and any special educational needs. This follows from Section 7 of the Education Act 1996 which 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.”
The following points about School Attendance Orders apply to current law AND future law.
- SAOs are for children who are NOT REGISTERED at a school
- The SAO directs the parent to REGISTER the child at the named school
- An Attendance Order may be thought of as a Registration Order
- A local authority cannot register a child at school, only a parent can do this
- The SAO process STARTS with the local authority serving a formal notice requiring the parent to satisfy the LA after it appears the child is not receiving education suitable to age ability aptitude and special needs
- The formal notice is sometimes described as the start of a formal investigation or enquiry
- Before issuing the actual Attendance Order, the local authority must find a school place for the child
- The Attendance Order must only be served if the local authority considers it “expedient” that the child should attend school
- If the parent does not register the child at school after receiving an Attendance Order the local authority must DECIDE WHETHER TO PROSECUTE for breaching the Order
- If Not Guilty plea, case goes on a LONG WAITING LIST to be heard at the magistrates court
- The DEFENCE for court is that the child is receiving suitable education otherwise than at school
- SAO can be REVOKED if the local authority is satisfied that the child is receiving suitable education otherwise than at school
- Less flexibility with SAOs when a child has an EHCP (or an IDP in Wales)
SAO Law What Will Change
The future law on School Attendance Orders can be found in section 39 of the Children’s Wellbeing and Schools Act [LINK] which will ADD new sections to the Education Act 1996 after s 436A and REPLACE the current sections 437-443 for England and Wales.
What we now think of as “notice to satisfy” under section 437(1) will in future be called a “preliminary notice” under section 436H
1/ When the new law comes into force, it will give local authorities MORE REASONS to start a formal investigation on the grounds of possible lack of suitable education. For example if an initial home visit request is refused (potentially to both parents’ homes if the child lives between 2 homes) [436B (8) & (9)] the LA may decide to issue a preliminary notice.
2/ The new law will also allow the local authority to start a formal investigation on the grounds of possible lack of suitable education if the parent fails to supply the required information for register [436H (2) & (6) and (7)] Again it will be up to the LA to decide whether to issue a preliminary notice for this, but the core information required DOES include contact details for both parents.
3/ The new law will introduce NEW TIME LIMITS which means a formal notice could arrive very quickly. New 436H (10) says the LA must issue the formal notice within 5 days “beginning with the day on which it appears to the local authority” [that the conditions are met for serving the notice]
4/ A formal notice on education grounds will – as now – require parents to “satisfy the local authority that the child is receiving suitable education”, and the LA could – as now – potentially set a deadline of 15 days and then refuse to look at further evidence after this time [436I (1)].
5/ In addition to 1/ and 2/ above where the LA can CHOOSE whether to start the SAO process, the new law will REQUIRE [436H (5)] the local authority to issue a formal notice if there is an ongoing child protection enquiry or Child Protection Plan under section 47 of the Children Act 1989 [LINK] or if there has been a Child Protection Plan in the last 5 years.
6/ A formal notice issued on child protection grounds – as per point 5/ above – will REQUIRE parents to “satisfy the local authority that … the child is receiving education that is in their best interests“ when it appears to the local authority that “it would be in the child’s best interests to receive education by regular attendance at school“ [436I (1)]
Hence, in the specific section 47 child protection scenarios above, the parent must quickly convince the local authority that home education should be allowed to continue
The “best interests” test ONLY applies to SAOs issued on child protection grounds.
When the government was introducing these measures to parliament it said “we will set out in statutory guidance that local authorities should conduct a review to consider which children may be better served by being in school. Local authorities will then be able to use the SAO process to require these children to attend a named school” [LINK page 86]
7/ In terms of sanctions for breaching an Attendance Order, there will be higher fines for parents IF A PROSECUTION IS BROUGHT AND IF THE PARENT IS CONVICTED (ie found Guilty) and at the most extreme end of the scale – which DfE has argued will be very rare – prison will be a possibility. [436Q (8)]
8/ If a parent does NOT register their child at school as directed by a School Attendance Order and is prosecuted and found guilty but continues NOT to register the child at school, then the new law will allow the parent to be prosecuted AGAIN for the same offence. [436Q (5)]
9/ Last but by no means least, local authorities will have more power over admissions to Academy schools [436L (4) and 436M (6) and 436N] This could possibly be a game changer because a major difficulty for LAs is finding a school to name on the Attendance Order.
School Space And Court Space
Concerns have been expressed that formal investigations could become routine or standard practice in future – since there will be so many new grounds for triggering the formal process – and that once the investigation starts, it may be virtually impossible to “satisfy” the local authority ie a negative outcome is a foregone conclusion.
However, although the new law gives the appearance of Attendance Orders happening very quickly, LAs must still find school places in the relevant year group and this will remain a huge challenge despite being given more power over Academy admissions in future SAO law. See https://explore-education-statistics.service.gov.uk/find-statistics/school-capacity/2024-25
Furthermore, even if the local authority DOES find a school to name on the Order, parents will still have the option of NOT REGISTERING and then the local authority will have to decide whether it makes sense to start a prosecution.
If the local authority DOES decide to prosecute, then the parent will receive a big pack of court papers which can be an upsetting and overwhelming experience.
However, if the parent is prepared for this scenario and is able to wait it out, there is always the option of entering a Not Guilty plea after which there will be a lengthy delay before the magistrates court has space for a hearing which will give ample time to prepare a defence, see https://www.lawsociety.org.uk/Contact-or-visit-us/Press-office/Press-releases/Mounting-court-backlogs-continue-to-deny-fair-justice-for-all
SAO And Special Educational Needs
Historically there have always been differences in how School Attendance Orders operate if a child has an EHCP – or IDP in Wales (previously statement of special needs) and these differences will be carried through into the new law.
In current law [s 438] if a child has an EHCP there is no separate stage in the SAO process where the LA has to notify the parent ahead of the Order about which school is going to be named – which means it isn’t open to the parent to find an alternative school [s 440 and s 441]
Current law [s 442] also does NOT allow for the Attendance Order to be revoked in the same way if there is an EHCP
Hence the new Children’s Wellbeing and Schools Act is not saying anything specifically new about Attendance Orders where a child has an EHCP: the current s 441 maps onto new s 436J (the latter is marked as PROSPECTIVE meaning not yet in force), while s 442 is reflected in the new s 436P
Nevertheless, there are widespread concerns that the new law on Attendance Orders will disproportionately affect home educating families where the child has special educational needs or disability [SEND] See https://edyourself.wordpress.com/2026/01/26/what-wellbeing-bill-means-for-home-education/
SEE ALSO SEND Reforms
- Parents of SEND children are often seen as “difficult” because they disagree with professionals about the child’s needs.
- This can lead to a safeguarding referral which – if it became a formal section 47 enquiry – under the new law – would allow the local authority to decide whether continuing home education was in “the child’s best interests”
- In addition, the new law will allow the local authority to apply the “best interests” test if there has been a Child Protection Plan in the last 5 years, and again, this could particularly affect families with a SEND child since – as pointed out by Cerebra – there is “a default position that assumes parental failings when assessing the needs of disabled children” or “institutionalising parent carer blame”
- The potential SAO trigger of refusing a home visit may also be more common in cases where a child has SEND, for example if home is a safe space following school trauma.
- Once served with a “preliminary notice”, parents of SEND children may find it harder to satisfy the local authority that the non-standard home education which works for their particular child is “suitable” or full-time“ in the eyes of the LA.
What Happens Next
The government has said that there will be a public consultation on secondary legislation – including new regulations and new statutory guidance – which is when everyone will get a chance to comment on eg (not an exhaustive list!)
- the hours threshold for when a parent will have to give a provider’s details
- what the guidance should say about “child’s best interests”
- what exemptions there might be for giving both parents details
- what the LA is supposed to be looking for in a home visit
Until the new law comes into force, current law and guidance still applies. Read more on the link below including the letter from DfE to local authorities.
It is also possible for MPs and members of the House of Lords to submit Written Parliamentary Questions which will flag up areas of concern and where the answer will be on record ahead of any secondary legislation, see eg Home Visits Parliamentary Answers 1 and Home Visits Parliamentary Answers 2
Upcoming Judicial Review
There is a planned legal challenge to local authorities’ being given power to decide the “child’s best interests” meaning that some children could be prevented from coming out of school (see https://edyourself.org/deregistration-future-law/) or could be served with an Attendance Order directing them to be registered with a school.
The crowdfunder says “We seek to bring a legal challenge to test whether these provisions are compatible with the Human Rights Act 1998, particularly the right to family life and protection from discrimination”
I am making donations whenever I am able because I believe we need to be very careful about who decides a “child’s best interests” and who decides “which children may be better served by being in school” and I think this whole area must be looked at much more closely.
https://www.crowdjustice.com/case/challenge-the-risk-of-reducing
SEND Reforms
Outside the Children’s Wellbeing and Schools Act, the government is also planning other changes to EHCPs through the Schools White Paper Every Child Achieving and Thriving
The combination of Wellbeing Act plus proposed SEND reforms make it very difficult for parents to weigh up the costs and benefits of having an EHCP for a child who is unable to attend school.
On the one hand, having an EHCP could make it WORSE as far as School Attendance Orders are concerned, but if it is an EHCP with EOTAS it could be much BETTER as long as this is in place at the time of SEND law change, see https://edyourself.wordpress.com/2026/07/11/email-eotas-families-secondary-age-or-older/
The government has said it expects the special needs changes to start coming into force from 2030. The SEND proposals are at a MUCH EARLIER STAGE than the Wellbeing Act and still have to go through parliament.
1/ TAKING EHCPs AWAY + MAKING IT HARDER TO GET EHCP IN FUTURE – The Department for Education says EHCPs will only be available for those with the “most complex needs” who meet the criteria for a pre-determined Specialist Provision Package. In other words, it is suggesting that many EHCPs are unnecessary.
2/ TRIBUNAL – The Department for Education intends to reduce tribunal powers so that in future a judge would no longer be able to direct the contents of the placement section – for example adding or deleting the name of a school – but instead would only be able to ask the LA to reconsider. This means in future a child could be stuck with the named school as long as the EHCP remained in force and would also not be able to go to tribunal for EOTAS.
3/ EOTAS AND ALTERNATIVE PROVISION – From the EOTAS SEND Reform consultation we can see that the government wants to make schools responsible for time-limited alternative provision from approved providers for children unable to attend but who won’t get an EHCP in future or whose EHCP will be taken away, rather than local authorities under section 19 of the Education Act 1996 as at present