Supreme Court judgment on meaning of regular attendance at school

Wales Focus

26th April 2017

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The Supreme Court has given its judgment [1]  on the meaning of what is meant by “attend regularly” at school for the purposes of section 444 of the Education Act 1996. In an appeal against a judgment from the Administrative Court [2], the Supreme Court decided that “regularly” meant “in accordance with the rules prescribed by the school”. The Court therefore found that Isle of Wight Council had acted lawfully in issuing a penalty notice to a father who had taken his daughter on holiday during term time without authorisation from her school. This is a decision likely to be welcomed by local authorities and schools.

Although this case applied to an English local authority and school and some of the legislation considered in the judgment is specific to England, the principle established by the case will be relevant to Wales. Education is now the responsibility of the Welsh Ministers but section 444 of the Education Act 1996 still applies in Wales, so the need to take action against parents whose children do not attend school regularly is important. However, there are significant differences in regulations which apply in Wales relating to school attendance, in comparison to those which the Supreme court considered in respect of England.

Section 444 (1) of the Education Act 1996 says that if a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence. In the case of Isle of Wight Council v Platt, the father took his daughter out of school despite having been refused permission by the school headteacher to do so and having been warned that he would be issued with a fixed penalty notice. Having received a fixed penalty notice and failed to pay, the father was prosecuted by the Council in the magistrates court for committing the offence under section 444 (1) of the Education Act 1996. The magistrates found that there was no case to answer, on the basis that even after the holiday, the attendance of the child in question had been 90.3%.

Having been considered by the Administrative Court, the case came before the Supreme Court, where the key question was how to interpret the meaning of “attend regularly” when considering whether an offence has been committed under section 444(1) of the Education Act 1996. The justices considered that there were three possible meanings, namely:

  • “At regular intervals”, such as when a person is described as going to church regularly if he or she goes every Sunday or almost every Sunday.
  • “Sufficiently frequently” such as when a person is described as a regular at a pub or at church services.
  • “In accordance with the rules”.

The Supreme Court justices decided that the third option was the only appropriate meaning and concluded that in section 444(1) of the Education Act 1996, “regularly” means “in accordance with the rules prescribed by the school”. They also said that judgments which adopted a different interpretation should not be followed, mentioning in particular the case of Crump v Gilmore [3] , where the court decided that the question to ask was whether the occasions when the child did not attend school and had no reasonable excuse amounted to a failure to attend properly and the case of London Borough of Bromley v C [4] , in which the court found that the question of regular attendance was one of fact and degree.

The approach of local authorities to controlling absence from school and taking action against a parent whose child does not attend school regularly is subject to control in legislation. Regulations made under the Education Act 1996 specify requirements for schools to register attendance. These include provision for maintained schools and special schools not maintained by a local authority to grant leave of absence but the circumstances in which such leave may be granted is much more limited in England than in Wales. In Wales, the relevant regulations [5] make specific provision for a pupil to be granted leave of absence to go on holiday if the parent with whom the pupil normally lives makes an application. The extent of absence which may be granted to each pupil is limited to ten school days in any school year except in exceptional circumstances. Parents cannot be certain that every application for term time absence for a holiday will be approved, as schools have a power rather than a duty to authorise absence during term time. However, concern that some local authorities were issuing guidance indicating that headteachers should refuse all requests for leave of absence led the then Minister for Education and Skills, Huw Lewis, to write to all directors of education in Wales in 2015 to remind them that the discretion given to schools must be exercised fairly and that the requirement for exceptional circumstances applied to requests which would involve absence of more than ten school days in any one year.

The relevant regulations in England [6]  previously also allowed schools to grant leave of absence for a holiday in response to an application from the parent with whom a pupil normally resides. However, this power was amended in 2013, with the effect that an application for leave of absence may now only be granted if a school proprietor or someone authorised by them considers that should be granted due to the exceptional circumstances relating to that application. The amendments were made in the light of recognition that some parents and schools were interpreting the discretion of schools to grant leave of absence as an automatic entitlement to an annual two-week term time holiday. They also reflected the Government’s acceptance of a recommendation in a report in 2012 by Charlie Taylor, the UK Government’s expert adviser on behaviour [7], that rules on term time holidays should be strengthened, so that while head teachers should continue to have discretion, holidays in term time should be the exception rather than the rule. The report identified a link between poor attendance at school and lower academic achievement and said that there was evidence that children with poor attendance were unlikely to succeed academically and more likely not to be in education, employment or training when they leave school.

Other regulations made under the Education Act 1996 and the Education and Inspections Act 2006 prescribe requirements for the issuing of penalty notices, including an obligation for local authorities to draw up codes of conduct to ensure consistency in the issuing of penalty notices. In the Platt case, it was noted that the code of conduct applicable to the Isle of Wight stated that it was for headteachers to determine whether or not a request was exceptional and that it was usual that headteachers will be sparing in the use of this discretion. The Supreme Court also noted that an education welfare officer had checked compliance with the relevant code of conduct before authorising issuing of a penalty notice.

The judgment in the Platt case considered regulations relating to the issue of penalty notices which do not apply in Wales. However, the Welsh Ministers have made regulations relating to penalty notices, under the provisions of the Education Act 1996 and these require local authorities to draw up codes of conduct. Whilst the regulations in Wales provide some flexibility for parents in Wales to obtain approval for holidays in term time, they should be clear both about the potential for legal action to be taken against them over their child’s failure to attend school regularly and the approach that will be taken by the local authority for their area.

Before the Platt case, previous case law had left some potential for uncertainty about how a court might interpret the requirement for regular attendance at school. This latest case provides helpful clarification and should enable local authorities to be confident when taking action against parents to secure high levels of school attendance and to ensure that pupils in their area receive the best possible education. Whilst the Supreme Court judgment is likely to be welcomed by local authorities and schools, updated guidance which reflects the judgment would help them further. In England the Chair of the Local Government Association’s Children and Young People Board, Councillor Richard Watts has said that it is important that the Department for Education works with schools and councils to avoid any further doubt about the law and that the guidance provided to schools needs to be updated urgently. In Wales, issuing guidance would be the responsibility of the Welsh Ministers. The Welsh Ministers would be able to reflect the particular application of the legislation in Wales in any guidance which they issue.

Schools and local authorities should therefore watch out for any updated guidance on school attendance and should take account of any such guidance when taking action over school attendance. In the meantime, they should review their approach to school attendance in the light of the judgment to ensure that they are compliant with the statutory requirements, as interpreted by the Supreme Court, and that they are making most effective use of their powers to secure high levels of attendance by school pupils in their area. Schools in Wales have a discretion as to whether to grant applications for leave of absence and whilst, as Huw Lewis pointed out when he was Minister for Education and Skills, schools should not have a policy of refusing all applications, they would not be obliged to grant every application.

Further Information & Legal Advice

If you have any issues or queries regarding the above, please contact a member of our Education Team

1. [2017] UKSC 28

2. [2016] EWHC 1283 (Admin)

3. (1969) 68 LGR 56

4. [2006) EWHC 1110 (Amin)

5. Education (Pupil Registration) (Wales) Regulations 2010

6. Education (Pupil Registration) (England) Regulations 2006

7. Improving attendance at school, report by Charlie Taylor, the Government’s Expert Adviser on Behaviour, published by the Department for Education in 2012

RELATED: EDUCATION>>  CENTRAL, DEVOLVED & LOCAL GOVERNMENT >>


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