The Children’s Wellbeing and Schools Bill – if enacted – will change the law on school attendance orders, read more here https://edyourself.org/childrens-wellbeing-schools-bill/ (For example, the “best interests” test outlined in the bill is not current law)
Key points about School Attendance Orders: in most cases the SAO is threatened but doesn’t actually go ahead; before issuing the SAO, the local authority must serve a notice on parents; 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; there is no time limit on the LA for delivering a “verdict” after the parents have supplied evidence; there is no time limit on the LA for issuing the Order after the warning/letter of intention; the Order – if served – will require the parent to register the child with a school; the School Attendance Order itself doesn’t cause the child to be registered; 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; if a prosecution does go ahead the parent has the defence in court that the child is receiving suitable education otherwise than at school; means tested Legal Aid is available if it gets as far as court
It is only a parent who can register a child with a school. Read more here https://edyourself.org/school-roll/
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.
Expedient To Attend School
DfE Elective Home Education Guidance paragraph 6.14 for Local Authorities states “there are cases in which the authority might reasonably take the view that it is not expedient. Examples where this position could be justified are:
a. if the child is within a few weeks of ceasing to be of compulsory school age (especially as there may be a delay in enforcement through the courts);
b. if the child has physical, medical or educational needs leading to extreme vulnerability in a school setting – and the local authority should then consider alternatives such as tuition provided by the authority itself;
c. the parent is actively working with the authority to improve the home education and seems likely to achieve suitability within a very short time.”
Read my page on the home education guidance here https://edyourself.org/guidance/ and my page on the LA’s duty to arrange alternative provision under section 19 here https://edyourself.org/eotas/
It is only when a formal notice is issued under s 437(1) 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”. Read my page about the Portsmouth case here.
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 may not respond at all or may give the parent more time to improve provision. Alternatively the authority may write to the parent to say that it intends to issue a School Attendance Order. This letter is NOT the Order itself. The letter of intention must specify a particular school [438(2)]. The law requires the authority to consult with the school which must agree to be named before the school is named on the letter of intention [439(5)]. Finding a school to name can cause some delay.
The actual School Attendance Order is issued with reference to section 437(3) and will name the school where the local authority wishes the parent to register the child. The name “Attendance Order” is a bit misleading 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.”
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. Read my page on the school roll here. If the parent does not register the child at the named school the authority will decide whether to take it to court.
If the parent registers the child in accordance with a School Attendance Order, then the child cannot subsequently be deregistered without the SAO being revoked. This has always been the case but has been made clearer in the new School Attendance Pupil Registration Regulations 2024, read more here https://edyourself.org/pupil-registration-regulations-2024/
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. (From August 2024 this will be called “the starting day”, read more here)
Court
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 court should determine the case based on evidence of the child’s current education.
If it goes ahead the case will be heard in the magistrates court and if the prosecution is successful (eg parents do not turn up or plead guilty or the defence is not accepted) the magistrate may impose a fine and/or a parenting order.
Means Tested Legal Aid only starts after parents get a court letter. It has to be a letter from court not just from the local authority.
The law firm must have a 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. It is very 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 an expert witness covered by legal aid. In order to call an expert witness for the defence, the defence solicitor has 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.
Legal References (If No EHCP)
“(3)In this Chapter, “suitable education”, in relation to a child, means efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have” s436A(3) Education Act 1996
“(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 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.” s437 Education Act 1996
(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” s438 Education Act 1996
“(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” s439 Education Act 1996
“(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.” s442 Education Act 1996
“(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.” s443 Education Act 1996
Prosecutions for Failure to Secure Regular Attendance Registered Pupil
Truancy prosecutions fall into a different category from School Attendance Orders. There are a number of significant differences between prosecution under s437 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. Parents are NOT automatically prosecuted and taken to court for truancy, instead there may be a fine, sometimes known as a Fixed Penalty Notice and/or parenting classes.
The main thrust of s444 is that where a child is a registered pupil on the school roll and parents are prosecuted for the child’s non-attendance, which is an historic offence, the onus is on the parent to prove “reasonable justification” for the non-attendance. Reasonable justification is a defence in law. The legal definition of this is quite stringent. It includes circumstances where “the child was prevented from attending by reason of sickness or any unavoidable cause” (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, see changes to Pupil Registration Regulations from August 2024 https://edyourself.org/pupil-registration-regulations-2024/)
It is not a defence under s444 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 s437 and has complied with the order by registering the child with a school, there could subsequently be a prosecution under s444 if the child failed to attend regularly. In addition a pupil cannot be deregistered for home education while a school attendance order remains in force, read more here