1. Legal background
1.1. Sections 444A and 444B of the Education Act 1996 empowers authorised officers of the Local Education Authority, headteachers (and deputy and assistant headteachers if authorised by them) and the police, (including community support officers and accredited persons) to issue Penalty Notices in cases of unauthorised absence from school. Reference in this code of conduct to the "Authorised Person" applies to all persons authorised to issue Penalty Notices.
1.2. The Education (Penalty Notices) (England) Regulations 2004 (as amended) require the Local Education Authority, in consultation with all of the above, to develop a code of conduct when issuing Penalty Notices. Any person issuing a Penalty Notice must do so within the terms of this code of conduct ("the Code of Conduct").
1.3. These provisions apply to all parents who fall within the definition of a `parent' as set out in section 576 of the Education Act 1996. By virtue of this section `parent' includes: all natural parents, whether they are married or not; any person or body who has parental responsibility for a child (as defined by the Children Act 1989); and any person who, although not a natural parent, has care of a child. Having care of a child means that a person with whom a child lives and who looks after a child, irrespective of what their relationship is with that child, is considered to be a parent in education law.
2. Rationale for issuing Penalty Notices
2.1. Regular and punctual attendance at school is a legal requirement as well as essential if pupils are to maximise their educational opportunities.
2.2. In law, parents/carers are committing an offence if they fail to ensure the regular and punctual attendance of their child at the school at which the child is registered unless the absence has been authorised by the school.
2.3. Although current sanctions to enforce regular school attendance exist under section 444 of the Education Act 1996 and section 36 of the Children Act 1989, the introduction of Penalty Notices is aimed at offering a swift intervention which may be used to combat cases of unauthorised absence before the problem becomes too entrenched.
2.4. The purpose of the Code of Conduct is to ensure that these new powers are applied consistently and fairly across the area of Hampshire County Council ("the County Council") and that suitable arrangements are in place for the administration of the scheme.
2.5. Authorised Persons are not obliged to issue Penalty Notices. Designated officers of Hampshire County Council's Children's Services Department will automatically consider the use of Penalty Notices in all cases of unauthorised absence at the level defined below.
2.6. Schools are already required by the County Council to notify the Children's Services Department of any pupil who has had unauthorised absence of 20 or more half day sessions ie the equivalent of 10 school days, in any 10 school week period. This requirement continues to apply irrespective of whether or not the school is considering issuing a Penalty Notice.
2.7. The police can also refer concerns about a pupil's absence from school to the Children's Services Department without having to recommend a Penalty Notice.
3. Circumstances when a Penalty Notice may be issued
3.1. Penalty Notices can only be issued in cases where a pupil of compulsory school age has been absent and the absence has not been authorised by the school or where the pupil has persistently arrived late after the register has been closed. The level of absence that is necessary before a Penalty Notice can be issued in any circumstance is 20 or more half-day sessions i.e. the equivalent of 10 school days, of unauthorised absence during any 10 school week period.
3.2. Hampshire County Council will normally only issue a Penalty Notice in circumstances of more that 20 half day sessions of unauthorised absence for a family holiday, during any 10 week period, where the child is otherwise attending regularly, with the restriction that only one period of such unauthorised absence in an academic year should be exempt.
3.3 Penalty Notices are intended to be used in tackling parentally condoned absence where it is reasonable to expect that the parent can ensure the child's regular attendance but s/he is not willing to take responsibility for doing so e.g. where a parent is not cooperating with advice or support offered to help improve his or her child's attendance. Furthermore, in accordance with Department for Education and Skills (DfES) guidance, they should only be issued when to do so is likely to secure an improvement in the child's future attendance.
3.4 Prior to the issuing of a Penalty Notice, the following criteria must therefore be considered and satisfied:
· Will this be an effective measure in helping the pupil return to school and/or ensure future regular attendance?
· Is it reasonable to expect that the parent is capable of ensuring the pupil's regular attendance?
· Is there evidence of a lack of parental cooperation in responding to the advice/support offered?
3.5 When considering whether a Penalty Notice is appropriate, it should also be borne in mind that if the parent were to fail to pay the Penalty:
· the parent could not be prosecuted for the non payment of the penalty itself but would have to be prosecuted for the original offence to which the Penalty Notice relates; and
· prosecution proceedings for the particular offence for which the Penalty Notice was issued could not be initiated until after the final deadline for payment has passed i.e. 42 days after receipt of the Notice.
4. Steps to be taken before Authorised Persons can issue Penalty Notices
4.1 Designated officers of the Children's Services Department will act as Authorised Persons and will be responsible for issuing Penalty Notices on behalf of the County Council.
4.2 DfES guidance advises that Headteachers who wish to issue or who authorise their staff to issue Penalty Notices must first gain the agreement of their governing body. The County Council interprets this as meaning that this would be done on one occasion only rather than on the occasion of each proposed Penalty Notice. All schools should amend their attendance policies to include information about the use of Penalty Notices. This information should be drawn to the attention of all parents.
4.3 The police should decide who, within the police or agents acting on their behalf in relation to Penalty Notices, should issue Penalty Notices.
5. Procedure for issuing a Penalty Notice
5.1 Who can issue Penalty Notices?
Any Authorised Person may issue a Penalty Notice. In doing so, however, the Authorised Person must comply with the Code of Conduct.
5.2 When can Penalty Notices be issued?
5.2.1. A Penalty Notice can be issued:
· when a pupil has had 20 or more half day sessions ie the equivalent of 10 school days, of unauthorised absence during any 10 school week period,
· when the circumstances of the pupil's absence meets all the requirements and criteria in the Code of Conduct; and
· when the issuing of a Penalty Notice does not conflict with other intervention strategies in place or other sanctions already being processed.
5.2.2 Save in exceptional circumstances (see paragraph 5.3.1 below), a Penalty Notice will not be issued as an `on the spot' response. This is to ensure that the criteria and requirements of the Code of Conduct have been met.
5.3 How will Penalty Notices be issued?
5.3.1 In cases where an Authorised Person has concerns about a pupil's attendance, s/he would normally have ensured that contact has been made with the parent in the first instance in order to try to resolve any difficulties. Where the minimum defined period of unauthorised absence has occurred, however, an Authorised Person may consider the issuing of a Penalty Notice. Where an Authorised Person is considering issuing a Penalty Notice s/he should bear in mind that the normal response to a first offence should be a formal warning rather than a Penalty Notice*. Therefore, the Authorised Person should write to the parent (as defined in para.1.3) and include the following:
· details of the pupil's absence
· an offer to meet with the parent to discuss the concerns and to provide advice and support in an attempt to resolve any difficulties
· a statement of the legal responsibilities of the parent regarding attendance
· the consequences for the parent in failing to ensure his/her child's regular attendance, in particular warning that further unauthorised absences could result in a Penalty Notice or prosecution
· contact details for officers in Local Offices of the Children's Services Department who may also be able to offer their support and advice
· an expectation that within 15 school days of receipt of the warning letter that the level of attendance will have significantly improved and that this improvement will be maintained thereafter.
*The DfES guidance indicates that a Penalty Notice can be issued for a first offence in exceptional circumstances, for example where a parent takes a child on holiday during term time without the school authorising the absence. In such circumstances although a minimum of 20 half-day sessions of unauthorised absence will still apply before a Penalty Notice may be issued, the Authorised Person may issue a Penalty Notice, without first writing to the parent as would otherwise be required. However s/he should still be satisfied that the parent was informed beforehand that in some exceptional circumstances eg term time holiday, unauthorised absence could lead to a Penalty Notice being issued without further warning.
5.3.2 In all cases involving a child `looked after', the Authorised Person must also send a copy of the warning letter to the child's social worker as well as to the Director of Children's Services for the Local Authority which has responsibility for the child `looked after'.
5.3.3 If this warning and the offer of support does not effect a significant improvement in attendance within the required timescale, the Authorised Person should consider every aspect of a pupil's circumstances before deciding whether to issue a Penalty Notice. S/he should make a record of his/her considerations and decision when issuing a Penalty Notice.
5.3.4 For reasons of possible prosecution, if after a warning letter has been issued, there is sufficient irregular attendance to merit a Penalty Notice being issued, this must be issued promptly.
5.3.5 Any Penalty Notice issued must be addressed to one parent but a Penalty Notice may be issued to each parent liable for the offence or offences.
5.3.6 An Authorised Person has discretion when deciding whether to issue one or more parents of a child with a Penalty Notice. This is to enable account to be taken of the specific circumstances in individual cases.
5.3.7 The maximum number of Penalty Notices which can be issued to any one parent during a 12 month period is two irrespective of the number of children not attending school on a regular basis.
5.3.8 In families where more than one child is not attending regularly, multiple issue should be the subject of careful consideration by the Authorised Person.
5.3.9 It is important to avoid the issuing of duplicate Penalty Notices and to ensure that a Penalty Notice is not issued when a prosecution is being planned or has been initiated for the offence relating to the specific period of unauthorised absence. Therefore, before issuing a Penalty Notice all Authorised Persons must liaise with:
· Hampshire County Council Children's Services Department;
· any Local Authority, including Hampshire County Council, which is involved with the child;
· any Local Authority, including Hampshire County Council, which has a statutory responsibility if the child is `looked after'; and
· any Local Education Authority within whose area the child resides.
5.3.10 An Authorised Person must promptly provide the Children's Services
Department with a copy of any Penalty Notice issued as well as copies
of the paperwork relating to the decision to issue a Penalty Notice e.g.
the warning letter sent, any records of considerations and decisions
5.3.11 If the unauthorised absence is continuing but the Authorised Person
decides not to issue a Penalty Notice, s/he should liaise with an
officer of the Children's Services Department to consider how best
5.4 Where an Authorised Person recommends that the County Council
should issue a Penalty Notice
5.4.1 Although designated officers of the Children's Services Department will be responsible for issuing Penalty Notices on behalf of the County Council, any Authorised Person may refer a case to the Children's Services Department with a recommendation that a Penalty Notice be issued.
5.4.2 Prior to making a recommendation for a Penalty Notice to be issued, the Authorised Person would normally send the parent a warning letter containing the information set out in Paragraph 5.3.1 above. The Authorised Person should then monitor the pupil's attendance. If the pupil's attendance is not improving, the Authorised Person should send the relevant paperwork to the Children's Services Department. This would include, if applicable, a copy of the warning letter, as well as the reasons why the Authorised Person recommends that the Children's Services Department should issue a Penalty Notice and, in particular, why s/he believes that a Penalty Notice would be likely to secure an improvement in the pupil's future attendance. This recommendation can be made before the expiration of the 15 school day timescale provided for in the warning letter.
5.4.3 Designated officers of the Children's Services Department will consider the recommendation to issue a Penalty Notice as well as any alternative means of intervention it may take. This would include the offer of family support, a parenting contract, referral to another agency or parental prosecution.
6. Payment of Penalty Notices
6.1 Arrangements for the payment will be detailed on the Penalty Notices
themselves. Penalties are to be paid to Hampshire County Council.
6.2 If paid within 28 days of receipt of the Penalty Notice, the Penalty is
£50. If not paid within 28 days the Penalty is automatically increased to
£100 if paid within 42 days.
6.3 Any revenue resulting from payment of Penalties will be retained by the
County Council to help cover the costs of issuing Penalty Notices and/or the cost of prosecuting recipients who do not pay.
6.4 Payment of a Penalty discharges a parent's liability for the period in question and means that they cannot subsequently be prosecuted under any other enforcement powers for the period covered by the Penalty Notice.
7. Non-payment of Penalty Notices
7.1 The non-payment of a Penalty within the prescribed period of time will
automatically lead to a prosecution under section 444, Education Act
1996. The prosecution cannot be for the non-payment of the Penalty.
8. Withdrawal of a Penalty Notice
8.1 There is no statutory right of appeal against the issuing of a Penalty
Notice. Furthermore, once issued, a Penalty Notice can only be
withdrawn if it is established that it ought not to have been issued e.g.
where it has been issued outside the terms of the Code of Conduct,
where no offence has been committed or where it has been issued to
the wrong person.
8.2 Where an Authorised Person withdraws a Penalty Notice, s/he must
notify the Children's Services Department explaining the reasons for
9. Arrangements for co-ordination between the County Council, other Local Education Authorities (where appropriate), the police and authorised officers
9.1 The Children's Services Department will monitor the use of Penalty
Notices. This will help ensure consistent and equitable delivery and
allow cohesion with other enforcement sanctions.
9.2 The Children's Services Department will provide annual feedback to headteachers and the police (and neighbouring LEAs where appropriate) on the use of Penalty Notices and resulting outcomes.
9.3 Where it appears to the County Council that the Code of Conduct
requires amendment, the Children's Services Department will consult headteachers, the police, and any other person or body it deems appropriate, regarding the proposed changes.