Contact: David Retter, Havant Local Office, [email protected]

1 Summary

1.1 The County Council as the local education authority is required by legislation to draw up a Code of Conduct for the issuing of penalty notices in respect of a child found in a public place during the first five days of a fixed term or permanent exclusion. The Code of Conduct relates to the administrative area of Hampshire County Council.

1.2 In preparing the Code of Conduct, the County Council is required to consult Headteachers, Governing Bodies and the Chief Constable of Hampshire Constabulary in respect of it. This report seeks authorisation from the Executive Lead Member for Children's Services (Education) to undertake this consultation using the draft Code of Conduct set out in the Appendix.

2 Recommendations

That the Executive Lead Member for Children's Services (Education):

(a) approves the consultation document set out in the Appendix; and

(b) authorises consultation to be carried out with the Headteachers of all schools maintained by the County Council, their Governing Bodies, the Chief Constable of Hampshire Constabulary and other appropriate parties the results of which will be reported back to the Executive Lead Member at a future decision day.

3 Code of Conduct for issuing Penalty Notices in relation to excluded pupils in public places.

3.1 Legal Basis

3.1.1. Section 103 of the Education and Inspections Act 2006 ("the Act") places a
duty on the parents of a child excluded from school to ensure that the child is
not present in a public place during school hours without reasonable
justification during the first five days of each and every fixed period or

permanent exclusion. Headteachers are required to notify parents of their duty under section 103.

3.1.2 Sections 100 and 101 of the Act place a duty on the school or local authority o make provision for the excluded child's full time education from the sixth day of any fixed period exclusion in a school year (in the case of a school) or from the sixth day of each permanent exclusion (in the case of a local authority) but they can make the provision earlier. If provision is made earlier than the sixth day of the exclusion, the parent's duty to ensure that their child is not in a public place during the specified days of exclusion becomes a duty to ensure that their child regularly attends the provision.

3.1.3 Section 105 of the Act allows for a penalty notice to be given to a parent guilty of an offence under Section 103. A penalty notice allows a parent to pay a penalty as a way of discharging any liability for the offence of failing to ensure that their child is not present in a public place on the specified days of exclusion.

However, it is not necessary for a penalty notice to be served before any prosecution can take place.

3.1.4 The following persons (referred to in this report as "authorised persons") are empowered to issue penalty notices:

· authorised local education authority staff,

· headteachers and school staff authorised by the headteacher (limited by regulations to deputy and assistant headteachers),

· the police (including community support officers and accredited persons).

3.1.5 These procedures apply to the parents of compulsory school age children who are registered at a maintained school, a pupil referral unit, an Academy, a city technology college or a city college for the technology of the arts in the area of the County Council.

3.1.6 All those recognised under section 576 of the Education Act 1996 are parents for the purposes of these procedures. The 1996 Act defines `parent' as:

· all natural parents, whether they are married or not

· any person who, although they are not a natural parent, has parental responsibility (as defined in the Children Act 1989) for a child or young person; and

· any person who, 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 the child, irrespective of what their relationship is with the child, is considered to be a parent in education law.

3.1.7 A headteacher and authorised staff may only issue penalty notices to parents of children registered at their school.

3.1.8 Local authorities may, in the absence of any other agreement, only issue penalty notices in respect of pupils registered at a school in that local authority area or, in the case of an unregistered pupil, who resides in their area.

3.1.9 Local authorities are responsible for both the administration of the penalty notice scheme and for bringing prosecutions. In respect of the penalty notice scheme local authorities are required to draw up a Code of Conduct in order to ensure that the power to issue penalty notices is applied consistently and fairly, and that suitable arrangements are in place for the administration of the scheme. Any person issuing a penalty notice must do so in accordance with the Code of Conduct. Regulations specify the matters that must be included in the Code of Conduct and these are contained in the draft Code of Conduct attached. Local Authorities are also required to have regard to any guidance issued by the Secretary of State, and this has been done in drawing up the draft Code of Conduct.

3.1.10 In preparing the Code of Conduct, the County Council is required to consult Governing Bodies, Headteachers and the Chief Constable of Hampshire Constabulary. This report seeks authorisation to carry out this statutory consultation using the draft Code of Conduct attached. It is proposed to undertake a six week consultation exercise discounting the February half term. The results of the consultation will then be brought back to the Executive Lead Member for Children's Services (Education).

3.2. Circumstances in which a Penalty Notice May Be Issued

3.2.1 The circumstances in which a penalty notice may be issued are described in paragraph 2 of the draft Code of Conduct set out the Appendix.

3.2.2 Government guidance provides that the key consideration is whether the penalty will be an appropriate sanction for the offence committed by the parent. A penalty notice is a suitable intervention in circumstances where the parent is judged capable of securing their child's whereabouts but is not willing to take responsibility for doing so.

3.2.3 Government guidance advises that the normal response to a first offence should be a warning letter rather than a penalty notice. However, the authorised person has the discretion to issue a penalty notice for a first offence in circumstances where the parent's conduct is particularly blameworthy. It is proposed that such

circumstances would include where, during school hours on a specified day of exclusion and whilst in the company of his/her parent, the excluded pupil creates a nuisance or disturbance in a public place.

3.2.4 It is proposed that the draft Code of Conduct should set out certain circumstances which are considered to be reasonable justification for an excluded

pupil to be present in a public place during school hours, during the specified days of exclusion. These are proposed to be where:

· the child may have a pre-arranged medical appointment or there may be a medical emergency which needs immediate attention,

· there is a pressing need for the parent to seek medical help and she/he may feel it inappropriate to leave their child alone in the home unattended and be unable to make alternative arrangements such as leaving the child with a friend or a relative,

· the child needs to attend a place of worship on a day set aside exclusively for religious observance by the religious body to which the parents belong, including religious festivals,

· the child needs to travel to college/training provider/work placement during the period of exclusion,

· the child needs to attend the wedding/funeral of a close relative,

· the child is travelling with a parent to a minder or the parent's place of work,

· the child is travelling to a public library with a parent as a place of supervised study. We anticipate that this justification could be open to abuse. We look forward to the consultation responses to assist with formulating this final point.

Therefore, it would not normally be appropriate to issue a penalty notice in these circumstances. It is for the parent to prove reasonable justification and provide the factual evidence in support of this.

3.2.5 It is proposed that the maximum number of penalty notices that may be issued to any parent during any one academic year should be twelve. This gives the potential to issue two penalty notices each half term. The reasoning behind this is that it gives headteachers, the local authority and police flexibility in the management of penalty notices whilst ensuring that a family's circumstances can be taken into account. The alternative to a penalty notice is a prosecution in respect of which the maximum fine is £1000.

3.2.6 A penalty notice may be issued to each parent liable for the offence. 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.

3.3 Procedure for issuing Penalty Notices

3.3.1 The procedure for issuing a penalty notice is set out in paragraph 4 of the draft Code of Conduct. A penalty notice proforma is included in the Code.

3.3.2 In preparing the draft Code of Conduct, regard was had to the County Council's existing Code of Conduct for issuing penalty notices in respect of unauthorised absence from school so as to promote consistency between the two Codes of Conduct, where appropriate.

3.3.3 As indicated previously, the normal response to a first offence should be a warning letter.

3.3.4 DCSF guidance provides that local authorities should follow the spirit of this legislation by ensuring that those looked after children for whom they are responsible are not present in a public place when excluded, even though, as a corporate parent, they are outside the scope of the legislation. It is proposed that if an excluded looked after child is present in a public place during school hours on one of the specified days of exclusion, the authorised person should immediately contact the child's social worker so that the incident can be investigated by the County Council and appropriate action can be taken.

3.3.5 Before issuing a penalty notice, the authorised person should give the parent an opportunity to make representations in writing and expressly request the parent to provide any justification that he/she might have.

3.3.6 If, after taking into account any representations made by the parent, the authorised person decides that it is appropriate to issue a penalty notice he/she must first liaise with the Children's Services Department. This action is required in order to:

· avoid the issuing of duplicate penalty notices,

· ensure that a penalty notice is not issued when a prosecution is being contemplated or has been commenced; and

· avoid the issuing of a penalty notice in excess of the maximum number of penalty notices that can be issued to one parent in an academic year.

3.3.7 Following the issuing of a penalty notice the authorised person must without delay provided the Children's Services Department with a copy of the notice and other relevant documentation. In the event that the parent fails to pay the penalty, the County Council will prepare for prosecution proceedings against the parent. At that time the authorised person will have to provide a witness statement in support of the issuing of the penalty notice which will be relied upon in the proceedings.

3.3.8 It is proposed that an authorised person may request the County Council to issue a penalty notice in respect of the offence. The authorised person must provide the Children's Services Department with the relevant documentation and it will be for the designated officer to decide whether it is appropriate to issue a notice.

3.4 Payment of Penalties

3.4.1 The penalty is £50 if paid within 28 days of receipt of the penalty notice rising to £100 if paid after 28 days but within 42 days of receipt of the notice.

3.4.2 Regulations provide the penalties are to be paid to the Local Authority. However, if any revenue resulting from payment of penalties is not used for the purposes of issuing and enforcing penalty notices, and prosecuting recipients who do not pay, that sum must be paid to the Secretary of State.

3.4.3 It is proposed that the current arrangement for the administration of the payment of penalties issued in respect of unauthorised absence from school will be utilised for the payment of penalties in respect of excluded children in public places.

3.4.4 If the penalty is not paid in full by the end of the 42 day period the County Council must either prosecute the parent or withdraw the penalty notice. A penalty notice may only be withdrawn by the County Council in limited circumstances.

3.5. Arrangements For Co-Ordination Between The County Council, Other Local Education Authorities (Where Appropriate), The Police And Headteachers

3.5.1. The Children's Services Department will monitor the use of penalty notices and will provide annual feedback to Headteachers, the Police and neighbouring local education authorities (where appropriate) on the use of penalty notices and resulting outcomes.

4 Hampshire County Council Priorities

4.1 The proposals in this report support the County Council's corporate priorities - "Making Hampshire safer and more secure for all". Children and young people who are not attending school or local authority provision during the first five days of a fixed term or permanent exclusion and are not being supervised appropriately by their parents may become involved in offending or may be vulnerable to or at risk of becoming a victim of crime.

"Maximising wellbeing" - the overall development and wellbeing of children and young people as well as the opportunity to acquire qualifications that lead to post 16 education and training are enhanced whilst supervised appropriately undertaking their national curriculum studies.

"Enhancing our quality of place" - a young person's respect for his/her local environment is increased if during school hours that young person is engaged in study supervised by a parent.

4.2 It also supports the following outcomes of the Children Act -

"Staying Safe" - children and young people not supervised appropriately by parents and found in a public place may be vulnerable and at risk of becoming involved in crime or antisocial behaviour or may themselves become the victims of crime.

"Achieving economic wellbeing" - children and young people benefit from structured, supervised learning. Parental oversight is imperative in outcomes that lead to post 16 learning.

5 Consultation

5.1 In preparing the Code of Conduct, local authorities are required by regulation15 of The Education (Penalty Notices ) (England) Regulations 2007 to consult Governing Bodies, Headteachers and the Chief Officer of Police for a police area which includes all or part of the area of the local education authority.

6 Legal implications

6.1 If the County Council fails to draw up a Code of Conduct the Secretary of State for Education may at any time direct the County Council to prepare a draft Code of Conduct for his approval.

6.2 In preparing the draft Code of Conduct, the requirements of the 2007 Regulations have been complied with and regard has been had to the guidance issue by the Secretary of State ("Guidance on Education-Related Parenting Contracts, Parenting Orders and Penalty Notices - Revised Edition September 2007).

7 Financial implications

7.1 The implementation of the Code of Conduct and the mechanics for the serving of Penalty Notices and the collection of subsequent fines will utilise existing procedures. However in the future there may be a cost to the County Council in the employment of additional staff. This will depend upon the number of penalties issued. It is anticipated that if the number of prosecutions increases additional funding for this purpose will need to be secured.

8 Personnel implications

8.1 None.

9 Impact assessment

9.1 Race and equality impact assessment has been considered in the development of this report and so adverse impact has been identified.

10 Crime prevention issues

10.1 Penalty Notices is a measure to ensure parents fulfil their responsibilities in ensuring their children are not present in a public place diring school hours without reasonable justification during the first five days of a fixed term or permanent exclusion. As such it is anticipated that school aged children will be less likely to commit, or be victims, of crime.

11 Views of the Local County Councillor

11.1 None.

12 Conclusion (no recommendations here)

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