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Code of Conduct for administering Penalty Notices (School non-attendance)

Rationale 

1. If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parents or anyone with parental responsibility is guilty of a criminal offence under Section 444 (1) of the Education Act 1996 as amended (“the Act”).  

2. Where an authorised officer of a local authority, an authorised staff member of a school or a Police Constable (an “Authorised Officer”) has reason to believe that a person has committed an offence under Section 444 (1) of the Act, they may give the person a financial penalty (“Penalty Notice”), in accordance with sections 444A and 444B of the Act as an alternative to prosecution in the Magistrates’ Court for the offence under section 444 (1) if paid within 28 days of being issued.  

3. The amount of financial penalty is £160 or, in prescribed circumstances, £80 where the amount is paid within the period of 21 days beginning with the date on which a Penalty Notice is received, as set out in the Education (Penalty Notices) (England) Regulations 2007 as amended (“the Penalty Notice Regulations”). 

4. A Penalty Notice may not be issued to a parent as an alternative to prosecution for a section  444 (1) offence in respect of the same child where two previous Penalty Notices have been issued to the parent in the previous three years, ending with the date on which it is proposed to issue a third Penalty Notice. 

5. The purpose of this Code of Conduct is to ensure that the associated powers in relation to the issue of Penalty Notices by Authorised Officers are applied consistently and fairly across the West Northamptonshire Council (“WNC”) area and that suitable arrangements are in place for the administration of Penalty Notices. The code complies with relevant regulations and the Department for Education’s statutory guidance  on the national framework for penalty notices as set out in the ‘Working together to improve school attendance guidance for maintained schools, academies, independent schools and local authorities’, as well as the non-statutory ‘National Framework for Penalty Notices for School Absence - Implementation Guide for Local Authorities’. 

6. Regular and punctual attendance at school or an alternative provision is both a legal requirement and essential for children and young people to maximise their educational opportunities. Penalty Notices offer a swift intervention which WNC will use to deal with issues of unauthorised absence before they become entrenched. 

7. An offence occurs if a parent/carer fails to secure a child’s attendance at school or alternative provision at which they are a registered pupil, and that absence is not authorised by the school or alternative provision. 

8. In addition, a Penalty Notice can be used to help ensure parents fulfil their responsibilities to ensure their child is not out in a public place without reasonable justification during the first five days of every exclusion from school. 

Authorisation 

1. The primary responsibility for the issuing of Penalty Notices will rest with the Local Authority in the WNC area. The School Attendance Support Service (“SAS service”) of WNC will therefore issue Penalty Notices in West Northamptonshire. This ensures consistency and will prevent conflict with other enforcement sanctions. 

2. Although professionals other than those within the Local Authority (e.g., Head Teachers, the Police etc.) are accredited persons within the legislation, able to issue Penalty Notices, there is no requirement for them to do so. It has been agreed that the Police will not issue Penalty Notices in the WNC area. 

If a Head Teacher feels it is appropriate for a Penalty Notice to be issued, they must refer to the WNC SAS Service. This will avoid a Penalty Notice being issued when the SAS Service has already charged a person with an offence under section 444 (1) of the Act, where a Penalty Notice is not deemed an appropriate form of intervention and will prevent duplicate penalty notices being issued. 

3. Penalty Notices will be issued and sent to persons by First Class post in accordance with the Regulations. 

4. The SAS Service will act upon requests to issue Penalty Notices from schools, academies, or alternative education providers and Northamptonshire Police, provided that: 

  • all relevant information is supplied in the specified manner; Schools to complete referral form to SAS Service via the Report a child with attendance issues online form. Schools must provide S9 Witness statement from relevant member of staff; including exhibits of pupils registration, schools attendance policy referencing their  definition of irregular attendance, pupil's attendance record showing unauthorised absences, evidence of actions taken (e.g. letters issued, notes of meetings held, attendance contracts, chronology, offer of Early Help Assessment (EHA)) evidence that the parent or carer has been notified that they may receive a Penalty Notice or where appropriate prosecution.
  • the circumstances of the pupil’s absence meet the requirements of this Code of Conduct and 
  • the issuing of a Penalty Notice does not conflict with other interventions strategies in place or other enforcement sanctions already in process. 

Criteria for issuing Penalty Notices 

1.    Penalty Notices are issued to parents as defined under Section 576 of the Education Act 1996 in relation to children of compulsory school age. Under the Act the term “parent” includes: 

  • All natural parents, whether they are married or not, 
  • Any person who, although not a natural parent, has parental responsibility for a child or young person and 
  • Any person although not a natural parent has care of a child or young person. Having care of a child or young person means that a person with whom the child lives and who looks after a child, irrespective of what their relationship is with a child 

2. They may be issued for children at maintained schools, academies, free schools and alternative provision providers in West Northamptonshire.  

3. In accordance with the definition of parent, and thereby parental responsibility for non-school attendance, more than one person may be liable for an offence under section 444 (1). In such circumstances, separate Penalty Notices may be issued to each person in relation to the same child. 

4. Penalty Notices may be issued when:

  • There has been an unacceptable level of unauthorised absence from an educational establishment and enforcement is necessary to improve attendance. Unauthorised absence is absence without permission from a head teacher or other authorised representative from the school. This includes all unexplained or unjustified absences. The categories of authorised and unauthorised absence are set out at table 3 of regulation 10 (2) of the School Attendance (Pupil Registration) (England) Regulations 2024. 
  • A minimum of 10 sessions of unauthorised absence in a 10-school week period will usually have occurred. The 10 sessions can be made up of a combination of any type of unauthorised absence.  
  • However, a shorter period may be considered appropriate in some circumstances, including depending upon the specific attendance policy of individual schools. This may include, but is not limited to, repeated shorter periods of unauthorised absence, such as taking several term time holidays below threshold, or for repeated absence for birthdays or other family events, regular patterns of unauthorised absence or absence in excess of an authorised period.

5. In the case of an unauthorised holiday taken during term time, Penalty Notices may be issued if: 

  • Parents have not sought permission from the Head Teacher before taking their child out of school for a holiday in term time, 
  • The Head Teacher has refused the request, but the absence occurs anyway or  
  • The Head Teacher has approved the absence, but a pupil has not returned to school by the agreed date with no satisfactory explanation 

and the 10 sessions of unauthorised absence in a 10-school week period criteria is satisfied, notwithstanding that a shorter period may be considered appropriate in some circumstances, including depending upon the specific attendance policy of individual schools. 

6. The SAS Service will receive enquiries regarding pupils who have moved to another Local Authority area within the prescribed period via a dedicated cross-border email address. Likewise, the SAS Service will conduct checks with other Local Authorities where a pupil has moved to their geographical area using the same mechanism. 

7. When considering legal intervention for a cross-border pupil, for example where a pupil from one geographical area attends an education provision in another, the Local Authority will liaise with the appropriate Officer to determine which Authority will lead on any agreed intervention. 

8. In cases where the previous local authority is not known or the information cannot be, or is not, provided by the previous Local Authority, it will be assumed that the parent has not previously received a penalty notice and the escalation process started as per a new case. 

9. Each case will be considered on an individual basis. 

10. Where; 

  • A pupil is persistently late to school (i.e. arrives after the register has closed) or 
  • When an excluded child is present in a public place during school hours on a day which is one of the first 5 school days to which the exclusion relates or, where that exclusion is for a fixed period of 5 days or less, any of the days to which the exclusion relates, under the protocol for Section 103 of the Education and Inspections Act 2006 

alternative action other than the issuing of a Penalty Notice may need to be considered if school attendance offences re-occur, in the light of advice from Legal Services. 

Withdrawal of Penalty Notices 

1. Once issued a Penalty Notice can only be withdrawn if one of the following circumstances apply: 

  • The Penalty Notice has not been issued in accordance with this Code of Conduct,
  • Evidence has been established that the Penalty Notice was issued to the wrong person,
  • There are material errors in the information leading to the issue of the Penalty Notice and
  • The period for payment has expired and the Local Authority does not intend to institute legal proceedings for which the Penalty Notice relates. 

Payment of Penalty Notices 

1. The arrangements for the paying of Penalty Notices will be detailed on the Penalty Notice. Revenue generated from the Penalty Notices will be used to cover the costs of issuing and enforcing notices, or the cost of prosecuting recipients who do not pay. 

Non-Payment of Penalty Notices 

1. If the Penalty Notice is not paid in full by the end of the 28-day period, the Local Authority may prosecute for the offence in respect of which the Notice was issued as an alternative to prosecution. 

2. Where a prosecution is not an appropriate course of action a Caution may be offered by the Local Authority as an alternative method of disposal.  

3. There is no statutory right of appeal against the issuing of a Penalty Notice as they are issued as an alternative to prosecution for an offence. 

4. A record will be kept of all prosecutions relating to the offence for which a Penalty Notice was issued. 

Considerations prior to the issue of a Penalty Notice for school absence 

1. Where difficulties arise with school attendance, professionals should take a ‘support first’ approach in line with the DfE’s ‘Working together to improve school attendance’ guidance, only resorting to legal enforcement when necessary. The aim is that the need for legal enforcement is reduced by taking a supportive approach to tackle the barriers to attendance and intervening early before absence becomes entrenched. 

2. The Local Authority may, where appropriate, seek to utilise alternative intervention to prosecution, such as but not limited to; 

  • Referral to Social Care, where wider contextual concerns are identified.  
  • Referral to wider support services, where such support is likely to be effective, has not been attempted or is deemed necessary. 
  • Issuing a notification of a formal warning, valid for a 12-month period.  
  • Using a Notice to Improve where support is appropriate but not working or being engaged with, to give a parent/carer a final opportunity to engage in support before they are issued with a Penalty Notice or other legal sanction if it is appropriate in the individual case. 

3. In cases where the national threshold is met and support is appropriate, that support should be continued or provided straightaway. In most cases this support is provided at school level and should start early when absence issues are first detected. 

4. In deciding whether support is appropriate or not, the school and WNC (and police, if involved) will consider whether the cause of the absence is something for which support could be provided. If support could be provided, the school and WNC will then consider what suitable forms of support are currently available in school and where necessary by other services and agencies in the local area. 

They will then decide whether any or all of those things are appropriate in the individual case and for those that are appropriate, whether they have been provided previously or could be provided or continued instead of taking legal action. 

5. In determining whether support offered is sufficient, the SAS Service will consider the following:

  • The school has considered an Early Help Assessment. If an Early Help Assessment is in place, a referral for tier 3 support is considered and actioned.
  • The school has first held attendance meetings, including adequate monitoring periods. 
  • The school has held an attendance meeting, identifying and addressing concerns raised. 
  • Appropriate assessments, or referral for assessment, have been completed. 
  • External support agencies have been consulted. 
  • Schools have considered the use of a Notice to Improve. 

6. Support can be any activity intended to improve the child’s attendance not including issuing a Penalty Notice or prosecution. Examples of support include action taken in school such as written communications to parents and meetings with parents and pupils to understand barriers and plan targeted support together. 

The form of support will be specific to the pupil and family and could include a range of actions including additional learning support, moving tutor group or school uniform provision. Some support would involve the local authority or other community services such as an early help assessment and support, transport provision or housing support.  

7. The Notice to improve will be issued by the Local Authority and remain in place for 4 weeks, monitored by the school. Where improvement is shown but is not yet at the required level, a further 2 week monitoring period may be agreed if deemed appropriate, though will not exceed a total of 6 weeks.  

8. A Penalty Notice may be issued before the expiration of the 4 week Notice period where no improvement/engagement is evidenced or where further unauthorised absences occur. The school do not need to wait for the initial period to elapse to refer to the Local Authority.  

9. All Local Authorities also retain the discretion to consider prosecution for matters where previous intervention has proved ineffective.   

Legislation 

1. Section 23 Anti-Social Behaviour Act 2003 empowers authorised officers of a Local Authority, Head Teachers (and Deputy and Assistant Head Teachers authorised by the Head) and Police Officers (including Community Support Officers) to issue a Penalty Notice in cases of unauthorised absence from school, or alternative provision 

2. The Education (Penalty Notices) (England) Regulations 2004 came into force on 27th February 2004 

3. The Education (Penalty Notices) (England) Regulations 2004 require the Local Authority, in consultation with the above, to develop a code of conduct for issuing of Penalty Notices. Any person issuing a Penalty Notice must do so within the terms of this code of conduct 

4. The Education (Penalty Notices) (England) Regulations 2005 extends the issuing of Penalty Notices to alternative provision 

5. The Education (Penalty Notices) (England) (Amendment) Regulations 2012 confirms the increase in the amount of penalty where the offence is alleged to have been wholly or partly committed after 1st September 2012 

6. Education (Penalty Notices) (England) (Amendment) Regulations 2013 confirm that the penalty of £80 must be paid within 21 days or after that period increase to £160 to be paid within 28 days 

7. The Education (Pupil Registration) (England) (Amendment) Regulations 2013 remove all reference to family holiday and extended leave as well as the statutory threshold of 10 school days. Amendments make clear that Head Teachers may not grant any leave of absence during term time unless there are exceptional circumstances. Head Teachers should determine the number of school days a child can be away from school if the leave is granted 

8. The education provisions of the Anti-Social Behaviour Act 2003 apply to all parents who fall within the definition of parent as set out in Section 576 of the Education Act 1996 

9. Penalty Notices supplement existing sanctions currently available under Section 444 Education Act 1996 or Section 36 Children Act 1989 to enforce attendance at school or alternative provision 

10. Education and Inspections Act 2006; giving authorisation to Penalty Notices when a child has been excluded 

11. This Code of Conduct complies with the requirements set out in Sections 14-16 of the Education (Penalty Notices) (England) Regulations 2007 

12. The issuing of Penalty Notices must conform to all requirements of the Human Rights 

13. Education (Penalty Notices) (England) (Amendment) Regulations 2024; amending the amount of a Penalty Notice and the escalation of intervention.  

Last updated 29 August 2024