Legal Basis (Anti-Social Behaviour Act 2003)

Sections 444A and 444B of the Education Act 1996 enable local authorities, senior staff in schools and police officers to issue penalty notices to the parents of children whose level of attendance at school is unacceptable. The full guidance in relation to these powers and the associated Regulations can be found on the Department for Education website (www.education.gov.uk). The Regulations, which are the basis for the actions taken in relation to penalty notices, are the Education (Penalty Notices) (England) Regulations 2007 (Amended 2024).

Introduction

• Regular and punctual attendance at school is vital if pupils are to maximise their opportunities to achieve success across a broad range of activities. Securing such attendance outcomes is also a legal requirement and a responsibility that is placed upon parents. The Local Authority, schools, a range of service providers and the wider community have a role in supporting regular attendance. Where difficulties are experienced there are legal options that can be pursued in order to ensure that  parental responsibilities are fulfilled and that a child returns to regular attendance at his or her educational establishment.
• In Bexley penalty notices may be used as one measure to address absence from school. It will not be the only measure and will be used only when it is considered to be an appropriate option, included as one of a range of strategies to support    individual children. Penalty notices may be used to combat attendance problems before they become entrenched or to discourage parents from taking their children out of school during term time when the Head Teacher has considered it inappropriate to authorise such absence.
• Penalty notices will not be issued where attendance is less than 80% and/or the case is deemed to be complex (such cases should be referred for consideration of a prosecution by the LA).
• The purpose of this Code of Conduct is to ensure that the powers are applied consistently and fairly across Bexley and are administered effectively. All appropriate parties will adhere to the Code of Conduct. It has been the subject of consultation with the police, Governors, Head Teachers and other interested parties.
• The LA retains discretion to refuse to issue a Penalty Notice or Penalty Notice invoice or refuse to prosecute in circumstances where it is not satisfied that the Code of Conduct has been followed and there is sufficient evidence to support a prosecution, or it is not in the public interest to pursue a case. This may happen, for example, where the efforts to engage with a parent/carer have been insufficient, where the absence has been for a very short period and the child has otherwise good attendance or where there is insufficient evidence of exceptional leave without authorisation being taken
• The Code of Conduct may be revised at any time in response to local circumstances or national developments.

What is a Penalty Notice?

A Penalty Notice gives the recipient the opportunity to avoid being prosecuted by the Local Authority under section 444 of the Education Act 1996.  The Local Authority is prevented from prosecuting during the period in which the Penalty Notice can be paid.  If paid, that precludes prosecution for the matters referred to in the PN.  After the period for payment has passed without the person having paid it, then prosecution may be pursued by the Local Authority.

Issuing of Penalty Notices

Who may issue penalty notices in Bexley?

Penalty notices in Bexley can only be issued in accordance with this Code of Conduct.

There are three groups who by law are able to issue penalty notices:

• Local authority authorised staff. In Bexley this will be staff within the Education Welfare Service (EWS).
• Head Teachers and school staff authorised by them (limited by Regulations to deputy and assistant heads). This can only be in respect of a child who is a registered pupil at his/her school.
• The Police (the guidance also includes community support officers and accredited persons).

In Bexley, Local Authority officers, Headteachers (and Deputy and Assistant Headteachers authorised by them) can issue PNs in cases of unauthorised absence from school.

Checks to be undertaken

Bexley’s Education Welfare Manager will undertake the following checks prior to issuing a penalty notice or issuing an invoice where a Head Teacher has issued a Penalty Notice:

Take all reasonable steps to ensure that the person named in a penalty notice is the  responsible adult person in relation to the child whose attendance is so poor as to require such action.

Ensure there is sufficient evidence that a school attendance offence has occurred (this will include consideration of the register of attendance from the pupil’s educational establishment), the possible prosecution is in the public interest and that in case of a prosecution, there would not be any abuse of process.

• Ensure that; 

A warning has previously been given in relation to school attendance concerns (exceptions may be in relation to follow-up action from a truancy sweep (Crime and Disorder Act 1998) or where an excluded child is in a public place under Section 103 of the Education and Inspections Act 2006) or 

In the case of an unauthorised leave for exceptional circumstances, that a warning has been given by the school that the absence is unauthorised and that if the pupil accrues at least ten sessions of unauthorised absence during a ten week period a penalty notice may be issued or

Where less than ten sessions of unauthorised absence have occurred for a term time holiday, and there is otherwise good school attendance, Bexley Council will issue a formal warning letter. The warning letter will be kept on file and be taken into account should further absences of this type occur during the school year.

• Ensure that there is no duplication in the issuing of penalty notices within Bexley.
• Establish if previous penalty notices have been issued and the period in which the penalty notices were last issued (this may mean that a further penalty notice is inappropriate.)
• Ensure that a prosecution for the alleged offence is not already underway
• Ensure compliance with the Code of Conduct

Criteria for issuing Penalty Notices

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:

Any person who, although not a natural parent, has parental responsibility for a child or young person.

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).

• They may be issued for children at maintained schools, academies and pupil referral units in Bexley.
• In accordance with the definition of a parent, and thereby parental responsibility for non-school attendance, more than one person may be liable for the offence. In such circumstances, separate notices will be issued to each person.
• Penalty notices may be issued:

Where 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 teacher or other authorised representative of the school. This includes all unexplained or unjustified absences. The categories of authorised and unauthorised absence are explained in the Guidance to the Education (Pupil Registration) (England) Regulations 2006. A minimum of ten sessions of unauthorised absence in a ten-school week period will usually have occurred. However, a shorter period of time may be considered appropriate in some circumstances;

In the case of unauthorised holiday taken during term time, 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
• A pupil has not returned to school by the agreed date with no satisfactory explanation
• And there have been ten sessions of unauthorised absence in a ten school week period;

In relation to truancy sweeps carried out under the Crime and Disorder Act 1998, a minimum of five sessions of unauthorised absence may generate a penalty notice, if these unauthorised absences occur in the ten school weeks (maximum) after the child was stopped on the truancy sweep;

When an excluded child is present in a public place during school hours on a day which is one of the first five school days to which the exclusion relates or, where that exclusion is for a fixed period of five 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

• A second penalty notice issued to the same parent for the same child within a rolling three year period should be charged at the higher rate of £160 with no option for this second offence to be discharged at the lower rate of £80
• A national limit of two penalty notices that can be issued to a parent for the same child within a rolling three year period. For a third ( or subsequent) offence(s) another tool should be considered ( such as prosecution or one of the other attendance legal interventions)
• It should be noted that where a Penalty Notice is to be issued for a child within the first five days of exclusion this will be under the protocol for Section 103 of the Education and Inspections Act 2006

Process for issuing Penalty Notices

• Following receipt of a warning  about their child’s absences from an educational establishment, parents will normally be given 15 school days in which to improve the situation to an acceptable standard except in the following circumstances:

Where, following a truancy sweep, the parent has already been made aware by letter that if the child has five or more unauthorised absences in the ten weeks following the truancy sweep, a penalty notice may be issued;

In the case of an unauthorised absence during term time or in other circumstances where a parent has requested an authorised absence, where the parent has been notified by the school that the holiday/other absence is not authorised or

In the case of an excluded pupil, where the excluded pupil is present in a public place during school hours on a day which is one of the first five school days to which the exclusions relates or, where that exclusion is for a fixed period of five days or less, any of the days to which that exclusions relates under the protocol under Section 103 of the Education and Inspections Act 2006.

• When the appropriate checks have occurred and the above criteria have been met, a senior member of Education Welfare (minimum Senior Education Welfare Officer  Level) will approve the proposed issuing of a penalty notice or the issuing of a  penalty notice invoice
• The penalty notice will be sent by first class post and a copy of the penalty notice will be kept on the pupil’s file or stored separately but with a reference clearly   indicated on the file. The penalty notice may, as an alternative, be given directly to     the recipient or served by leaving it at the recipient’s usual or last-known address or sending it to the recipient at that address by first class post
• The Senior Education Welfare Officer will lead on any co-ordination required between local authorities and its local partner agencies. If, for any reason the criteria for issuing a Penalty Notice is in doubt the Senior Education Welfare Officer  will contact the Head Teacher of the school that has issued the Penalty Notice to  discuss the reasons why the Bexley criteria for issuing a notice has not been reached
• Where the Penalty Notice has been issued by the Head Teacher, the process shall incorporate the following steps:

The Headteacher will date and sign an authorisation for the issue of a Penalty Notice which will accompany each Penalty Notice issued. Alternatively, the Head Teacher can sign the Notice.

The Notice(s) with the Authorisation will be sent to the Education Welfare Service.

An invoice will be generated via Bexley’s financial management system for each Notice.

The Education Welfare Service will send the invoice with the Penalty Notice to the parent.

The Education Welfare Service will notify the Head Teacher or the Head Teacher’s contracted external attendance service provider of the date when the Penalty Notice has been sent.

The Education Welfare Service will notify the Head Teacher or the Head Teacher’s contracted external attendance service provider of the date when the Penalty Notice is paid by the parent.

Payment

• The Education (Penalty Notices) (England) Regulations 2007 (Amended 2013) state that the amount of the penalty to be paid shall be: 

£80 where the amount is paid within 21 days of receipt of the notice; 

£160 where the amount is paid within 28 days of receipt of the notice.

• A penalty notice served by first class post will be deemed to have been received, unless the contrary is proved, on the second working day after posting.
• Payment can be made at by a number of means, according to the procedures and information given out on the invoice
• As soon as an account/ invoice is raised, it will be dated and tracked through the financial system. Income from penalty notices will go to the Local Authority, to be applied in meeting the costs of issuing and enforcing notices or the cost of     prosecuting recipients who do not pay within the aforementioned time scale. The difference between the penalty and the cost of raising the invoice is an additional cost which will be found by the Local Authority.
• There is no statutory right of appeal against the issuing of penalty notices. Penalty notices must be paid or a prosecution may be initiated, unless the penalty notice is withdrawn. Payment of a penalty notice discharges liability for prosecution for the offence to which the notice relates (Sections 444A (2) and (4) of the Education Act 1996 as inserted by Section 23 of the Anti-Social Behaviour Act 2003)

Withdrawal of Penalty Notices

• Penalty notices will be withdrawn by the Local Authority where it determines that the penalty notice ought not to have been issued because it was:

Issued to the wrong person.

Issued outside of the terms of this Code of Conduct.

Issued containing a material error. 

It must be withdrawn if not paid in full, and the LA has not, and does not intend, to instigate proceedings.

• Where a penalty notice is withdrawn, a notice of withdrawal shall be given to the recipient and any amount paid by way of penalty shall be repaid to the person who paid it. No proceedings shall be continued or instituted against the recipient for the offence in connection with which the withdrawal notice was issued or for an offence  under section 444 (1A) of the Education Act 1996 arising out of the same circumstances
• The Local Authority will ensure that a record is kept of all withdrawals and the grounds on which the penalty notices were withdrawn

Prosecution

• If the penalty notice is not paid in full by the end of the 28 day period, and the notice has not been withdrawn, the Local Authority will prosecute for the school attendance offence. The prosecution will not be for non-payment of the notice. The    prosecution will follow the usual procedures for any prosecution of parents over irregular attendance under section 444 of the Education Act 1996
• A record will be kept by the Education Welfare Manager of prosecutions relating to offences for which a penalty notice was issued

Next review due July 2025