Contact: Rita Crowne (Principal Education Welfare Officer) 01962 845770

e:mail: [email protected]

1 Summary

1.1 The County Council, as the Local Education Authority (LEA), is required by legislation to have adopted a code of conduct for the issuing of Penalty Notices in respect of unauthorised absence in Hampshire. A copy of Hampshire's Code of Conduct, which has been in force since the end of December 2004, is attached as Appendix A. Hampshire's Code of Conduct was approved by the County Education Officer, this decision having been delegated by the Executive Member for Education, when it was also agreed that the operation and effectiveness of the Code of Conduct would be reviewed after 6 months. This review has now taken place and a number of amendments to the current Code of Conduct are recommended. Formal consultation with the appropriate persons (as identified in paragraph 2.3) on these proposed amendments is required.

1.2 The purpose of issuing Penalty Notices is to encourage the regular school attendance of children who are of compulsory school age and are registered with a school. Regular school attendance contributes to the overall development of children and therefore improves their health. Children who are absent from school may be vulnerable and either at risk of becoming involved in crime or anti-social behaviour or may themselves become the victims of crime. Regular attendance at school will not only enhance the opportunities for children to enjoy the experience of learning but will also promote opportunities for them to further their academic achievements. Children who fail to attend school regularly are more likely to have difficulty in becoming an `inclusive' part of society and are less likely to secure regular employment and hence achieve economic well-being.

1.3 This initiative therefore supports Aims 1 and 4 of the Corporate Strategy by "Maximising life opportunities" and "Building safe and strong communities".

1.4 This initiative also supports all 5 Aims of The Children Act 2004 by seeking to help ensure that children are healthy, stay safe, enjoy and achieve through learning, make a positive contribution to society and increase the likelihood of economic well-being.

2 Legal Background

2.1 Section 444A 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 persons accredited by them), hereinafter collectively referred to as "the Authorised Person", to issue Penalty Notices in cases of unauthorised absence from school.

2.2 The Education (Penalty Notices)(England) Regulations 2004 require the Local Education Authority, in consultation with all of the above, to develop a code of conduct when issuing Penalty Notices. Any person in Hampshire issuing a Penalty Notice must do so within the terms of Hampshire's Code of Conduct.

2.3 The County Council therefore issued a consultation document to all headteachers of maintained Schools in Hampshire, their Governing Bodies, the Chief Constable of Hampshire Constabulary and other relevant parties. Responses to this consultation document were considered prior to the preparation of Hampshire's Code of Conduct. It was agreed that a review of Hampshire's Code of Conduct, its implementation and the effectiveness of Penalty Notices would be undertaken after 6 months. This review has now taken place and a number of proposed amendments to the current Code of Conduct are recommended.

2.4 Formal consultation with the above persons is therefore required in respect of the proposed amendments.

3 Rationale for Issuing Penalty Notices

3.1 Regular and punctual attendance at school is both a legal requirement and essential if children are to maximise their educational opportunities.

3.2 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.

3.3 Although current sanctions to enforce regular attendance exist under section 444 of the Education Act 1996 and section 36 of the Children Act 1989, the introduction of Penalty Notices by the government was aimed at offering a swift intervention which may be used to combat cases of unauthorised absence before the problem becomes too entrenched.

3.4 A Penalty Notice is a fine. It can only be issued to a parent in the circumstances set out in the Code of Conduct. The penalty is £50 if paid within 28 days of receipt of the notice, rising to £100 if paid after 28 days but within 42 days of receipt. Failure to pay the penalty in full by the end of the 42 day period will automatically result in a prosecution for the offence to which the notice applies, unless the Penalty Notice is withdrawn (which can only be done in limited circumstances relating to errors).

3.5 The purpose of the Code of Conduct is to ensure that these new powers are applied consistently and fairly across the area of Hampshire LEA and that suitable arrangements are in place for the administration of the scheme.

3.6 The County Council is required by the legislation to include in the Code of Conduct certain measures to ensure consistency in the issuing of Penalty Notices. The County Council must also have regard to the guidance on Penalty Notices issued by the DfES.

4. The Review Process

4.1 Although headteachers (and designated persons on their behalf), police constables (including persons accredited by them) and other interested parties have been given the opportunity to comment as part of the review, formal consultation with all of the aforementioned must still take place after a Revised Draft Code of Conduct has been prepared.

 5. Current Position

 5.1 Between 1 January and 13 September 2005 inclusive, a total of 42 Penalty Notices have been issued, four of which were issued by one headteacher and the remaining 38 by the Education Welfare Service on behalf of the County Council. Of the 42 issued, 16 (including the 4 issued by the headteacher) were paid within 28 days. Of the remaining 26, 19 were not paid within the 42 day deadline and the parents have been or are currently being prosecuted for the original offence of failing to ensure that their child attended school regularly. In the remaining 7 cases, payment is still outstanding and may be paid within the 42 day deadline. However, up to and including 13 September 2005, where payment was not made within the 28 days no subsequent payment of the higher amount of £100 had been made in the 29 to 42 day period.

5.2 Of the 42 Penalty Notices issued, this led to a significant improvement in the pupil's attendance in only two cases. In a further two cases, there has been a reduction in the pupil's unauthorised absence but not a significant increase in overall actual attendance i.e. a higher percentage of absence has been authorised. To date, in all of the cases which have led to prosecution because of non payment, the parents have been convicted. In most cases, the sanctions imposed by courts have been fines although the majority have not been significantly higher than £100.

6. Significant Issues Arising from the Review

6.1 Headteachers' right to issue Penalty Notices.

A number of headteachers have indicated their wish to retain the right to issue Penalty Notices themselves and as such, any revised Code of Conduct must still permit them to do so.

6.2. The maximum number of Penalty Notices

6.2.1 The Education (Penalty Notices) (England) Regulations 2004 (as amended) require the Code of Conduct to include a maximum number of Penalty Notice(s) that can be issued to a parent within a twelve month period. The DfES guidance also states that "careful consideration" should be given to multiple issue (of Penalty Notices) in families where more than one child is not attending school regularly. Hampshire's Code of Conduct currently states that this should be a maximum of two Penalty Notices to any parent within any twelve month period and that multiple issues should be the subject of careful consideration by the Authorised Person. During the period since implementation, it has become apparent that further consideration of these issues is needed.

6.2.2 For example, parents of a child are individually responsible for the offence of failing to ensure the regular school attendance of their child. In respect of a household where there are two parents, the issuing of a Penalty Notice to each parent leads to the family being penalised twice for the same child's period of absence. Alternatively, if only one Penalty Notice were to be issued, what criteria should be used in deciding which parent should be issued with the Penalty Notice, especially as any non-payment would lead to a prosecution and, if convicted, a criminal record for the parent? These issues are further complicated in those families where parents are living apart. For example, should a parent still be issued with a Penalty Notice if s/he does not live with the child but is able to influence the child's school attendance?

6.2.3 Also, where there is more than one child in a family who is not attending school regularly, the issue arises as to whether or not a Penalty Notice should be issued to a parent in respect of each child.

6.2.4 As Penalty Notices are intended as an early intervention tactic which is likely to secure an improvement in the child's future attendance, an excess of Penalty Notices issued to any one parent would seem to be counter-productive.

6.2.5 It is therefore recommended that the County Council consult the appropriate persons (as identified in paragraph 2.3) on the following basis:

a)   the Code of Conduct be amended to clarify that the Authorised Person has discretion when deciding whether to issue one or both parents with a Penalty Notice, to enable account to be taken of the specific circumstances in individual cases; and

b)   the maximum number of Penalty Notices which can be issued to any one parent during a 12 month period remain as two but the Code of Conduct be amended to include the wording "irrespective of the number of children not attending school on a regular basis".

6.3 What constitutes an offence in relation to non attendance?

6.3.1 The law does not define what is meant by regular attendance at school. Hampshire's Code of Conduct states that a pupil must have had at least 20 half day sessions ie 10 school days, of unauthorised absence during any 10 week school period before a Penalty Notice can be issued. Throughout the county, schools have different policies and approaches about authorising pupils' absence, for example in respect of pupils taking family holidays during term time, meaning that the same request may lead to authorisation in one school but not another.

6.3.2 In respect of the Code of Conduct, two headteachers indicated that they did not agree with the criterion of 20 unauthorised absence half-day sessions in any 10 week school period being applied in situations where a parent takes a child out of school for a holiday without the headteacher's permission. Those headteachers believe that any period of unauthorised absence arising from term time holidays should be viewed as the child not having attended school regularly and that the parent has therefore committed an offence. They have requested that the 20 half-day sessions `threshold' for issuing Penalty Notices should not apply in respect of unauthorised absence due to term-time holidays. They also indicated that, in their opinions, the current wording of the Code of Conduct does not make it clear that the 20 half-day sessions threshold applies equally to unauthorised absence due to term time holiday.

6.3.3 However, if a parent fails to pay a Penalty Notice s/he must be prosecuted for the original offence (of non-attendance). A situation could therefore arise where a parent is issued with a Penalty Notice where the child has had regular attendance, apart from the period of unauthorised absence for the term-time holiday, which may be less that 20 unauthorised half-day sessions. This would therefore be below the level of unauthorised absences at which the County Council would normally prosecute. The courts may take the view that the period of absence for the holiday eg 5 days (10 sessions), is not sufficient to convict parents of the offence of failing to ensure the regular attendance at school of their child.

6.3.4 Furthermore, where a child has otherwise attended regularly, some headteachers view a two week absence for a family holiday as not unreasonable and may therefore authorise such an absence. The County Council agrees with this view. The County Council could adopt a policy whereby Penalty Notices would not normally be issued for term time absence for holiday purposes, where the child had otherwise attended regularly, unless more than 20 half-day sessions in any 10 week school period have occurred.

6.3.5 It is therefore recommended that the County Council consult the appropriate persons on the following basis:

a) the minimum number of unauthorised absences of 20 half-day sessions in a 10 week school period, required for a Penalty Notice to be issued, should not be reduced when the absence relates to a term time holiday. The Code of Conduct be amended to emphasise that the threshold of 20 half-day sessions applies equally to unauthorised absence due to term time holiday; and

b) the Code of Conduct be amended to indicate that the County Council shall normally only issue a Penalty Notice in circumstances of more than 20 half-day sessions of unauthorised absence for a family holiday, during any 10 week school 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.

7. Minor Issues Arising from the Review

7.1 There are a number of minor amendments which will also need to be made to the Code of Conduct. These are not substantive and are primarily issues relating to clarity and accuracy.

8. Legal Implications

8.1 Local Education Authorities are required under section 23 of the Anti-Social Behaviour Act 2003 to have in place a Code of Conduct for the issuing of Penalty Notices in respect of unauthorised absence. In preparing the Code of Conduct, Local Education Authorities are statutorily required to consult specified persons. When revising the Code of Conduct, it would seem that Local Education Authorities should again consult those persons.

9. Financial Implications

9.1 As anticipated, the issuing of Penalty Notices has produced additional work both due to the administration of the process and the number of parental prosecutions which have taken place following non-payment of the Penalty Notice. A part-time (0.5FTE) Scale 4 administrative support officer has been appointed on a temporary basis to cover the administrative work arising out of the issuing of Penalty Notices as well as the administrative work relating to prosecutions arising from non payment of Penalty Notices. Estimated cost is:

Salary (pro rata based upon midpoint for scale 4 post for 6 months) £5,118

Cost of Training and IT Support ( £100 + £150) £ 350

Total £5,468

9.2 Funding was provided from adjustments to a number of previously agreed Standards Fund projects and will be subject to review on 31 March 2006. Income generated from payment of Penalty Notices is also used towards these extra costs.

10. Personnel Implications

10.1 The recruitment process using normal selection procedures of an EWS court administration officer (Scale 4, 0.5 FTE) on a temporary contract was followed.

11. Community Cohesion, Inclusiveness & Partnership Working

11.1 These issues will need to be addressed as part of the ongoing monitoring of the effectiveness of the use of Penalty Notices.

12. Crime Prevention Issues

12.1 Penalty Notices were introduced nationally as an effective means of reducing unauthorised absence. They were therefore envisaged as a means of reducing truancy and hence a reduction in juvenile crime. Children who are absent from school may also be more susceptible to becoming the victims of crime.

13. Impact assessment

13.1 In developing the Code of Conduct and proposed revisions, regard was paid to equalities and they do conform to national and local policies and legislation.

14. Recommendations:

14.1 That the Executive Member for Education empowers the Director of Children's Services to undertake consultation with the appropriate persons (as identified in paragraph 2.3) on the basis that the Code of Conduct be revised to incorporate the recommendations set out in Section 6, namely:

a) the Code of Conduct be amended to clarify that the Authorised Person has discretion when deciding whether to issue one or both parents with a Penalty Notice, to enable account to be taken of the specific circumstances in individual cases;

b) the maximum number of Penalty Notices which can be issued to any one parent during a 12 month period remain as two but the Code of Conduct be amended to include the wording "irrespective of the number of children not attending school on a regular basis";

c) the minimum number of unauthorised absences of 20 half-day sessions in a 10 week school period, required for a Penalty Notice to be issued, should not be reduced when the absence relates to a term time holiday. The Code of Conduct be amended to emphasise that the threshold of 20 half-day sessions applies equally to unauthorised absence due to term time holiday; and

d) the Code of Conduct be amended to indicate that the County Council shall normally only issue a Penalty Notice in circumstances of more than 20 half-day sessions of unauthorised absence for a family holiday, during any 10 week school 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.

together with any necessary minor amendments.

Section 100 D - Local Government Act 1972 - background documents

The following documents discuss facts or matters on which this report, or an important part of it, is based and have been relied upon to a material extent in the preparation of this report.

NB: the list excludes

1. Published works

2. Documents which disclose exempt or confidential information as defined in the Act.

None