Key points about School Attendance Orders: 1. In most cases the SAO is threatened but doesn't actually go ahead. 2. Before issuing the SAO, the local authority must serve a notice on parents. 3. After the formal notice period expires, if the local authority is still not satisfied, it should write to the parent indicating that it intends to issue a School Attendance Order. 4. There is no time limit on the LA for delivering a "verdict" after the parents have supplied evidence. 5. There is no time limit on the LA for issuing the Order after the warning. 6. The Order - if served - will require the parent to register the child with a school ie the the SAO itself doesn't cause the child to be registered. 7. The parent may refuse to register the child at a school, in other words, may opt not to comply with the order, and in this scenario the LA may choose to prosecute. There is no time limit for deciding to prosecute. 8. If a prosecution does go ahead the parent has the defence in court that the child is receiving education otherwise than at school.
Had it gone ahead, the Schools Bill would have changed the SAO process but the government confirmed in December 2022 that the Bill had been dropped and therefore none of the proposed changes will be taken forward. 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. For example, as stated in DfE guidance paragraph 6.14 and noted by the Ombudsman it may not be expedient "if the child has physical, medical or educational needs leading to extreme vulnerability in a school setting".
It is only when a formal notice is issued under s 437 that a local authority is required to be satisfied. At any stage up to this point, the LA will be asking for information which may be referred to as "informal enquiries". 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.
More on School Attendance Orders and EHCPs [Education Health and Care Plans] via Home Educating With EHCP new page February 2023
It is only a parent who can register a child with a school. A child is not automatically registered at a school by the school being named on a School Attendance Order; the parent also has to agree that the child will attend. It is somewhat of a misnomer to call it an "Attendance Order" since it is actually a registration order "requiring him [the parent] to cause the child to become a registered pupil at a school named in the order."
The child becomes a registered pupil from the "expected first day of attendance" which is the first day that the parent has agreed or notified the school that the child will attend. If the child is simply sent in to school on or after the expected first day, this also signifies agreement.
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. 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.
You need to make sure the law firm has legal aid contract for criminal cases. The Law Society website has a search function. 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.
School Attendance Order
(1) If it appears to a local 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 authority shall consult—
(a) the governing body, and
(b) if another local authority are responsible for determining the arrangements for the admission of pupils to the school, that authority
(6) Where a local authority decide to specify a particular maintained school in a notice under section 438(2) they shall, before serving the notice, 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 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 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.
Prosecutions for Failure to Secure Regular Attendance Registered Pupil under s.444 Education Act
Truancy prosecutions fall into a diferent category from School Attendance Orders 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. 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 are 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.
Related PagesThe Law Starting page for law relating to home education
School Roll Regulations for adding pupils to school roll, also removal from roll
Legal Presentation by barrister Ian Dowty
Children Missing Education section 436A - what CME guidance say about local authority duties
Portsmouth Judicial Review Judge's ruling that Portsmouth council was not acting outside the law
Government Home Education Guidance The Guidance is non-statutory and does not introduce new powers or duties
Deregistration Taking a child out of school
Child's Right to Education The law is phrased in the negative -"no one shall be denied the right to education"
Schools Bill The Schools Bill has been DROPPED
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