Fixed penalty notice for absence

Regular and punctual attendance at school is a legal requirement under Section 7 of the Education Act 1996.  Parents can be issued with a fixed penalty notice in relation to their child’s unauthorised absence from school.

This guide is produced to answer any questions parents may have.

The legal context

Under Section 444 of the Education Act, an offence occurs if a parent/carer fails to secure their child’s regular attendance at the school where they are a registered pupil, and the absence is not authorised by the school.  Only headteachers can authorise absence and the only legal reasons for absence are:

  1. That the absences are with leave (ie that they have been agreed by the headteacher)
  2. That the absences are because of sickness or unavoidable cause.  Parents may be asked to provide evidence to support absences due to ill health, this can be through a copy of an appointment card or prescription or information from a medical practitioner.
  3. That the absences fall on days of religious observance for the religion to which parents belong
  4. That the child is entitled to free transport to school and the County Council has failed to provide this

If absences do not fall into any of these four categories or the school has not been informed of reasons for absence, absences will be marked as unauthorised. Section 23 of the Anti-Social Behaviour Act 2003 introduced powers for issuing fixed penalty notices for unauthorised absence from school. The Education (Penalty Notices) (England) Regulations came into force on 27 February 2004. These were updated with amendments in 2007, 2012 and 2013.

In Norfolk, Fixed Penalty Notices are issued in accordance with the Norfolk Local Protocol (May 2014).

A school can refer a case to the County Council to issue a Fixed Penalty Notice for either:

  1. Fifteen percent or more unauthorised absence for reasons other than a term-time holiday within a six week period
  2. Ten consecutive sessions of unauthorised absence where some or all of the absence may be attributed to an unauthorised holiday in term-time (for absences from 1 September 2017)

Other legal interventions are available and your child’s school can provide you with more information if it is required.

Failure to pay a fixed penalty notice reverts back to a Section 444 1 Education Act 1996 offence and you will face prosecution in the Magistrates Court.

Fixed Penalty Notices (FPN) for term-time holidays and the Isle of Wight case

Following the High Court Judgement Isle of Wight case, the Supreme Court has subsequently heard an appeal in respect of the previous judgement.  On 6 April 2017 the Supreme Court unanimously ruled that a child fails to attend school regularly if they fail to comply with the rules prescribed by the school.  The Supreme Court decision is of importance to local authorities, schools and parents across England and Wales because it clarifies the meaning of regular school attendance.  Prior to this decision uncertainty existed around the correct interpretation of the word 'regularly' in this context - the Supreme Court has concluded that the term means in accordance with the school's rules.

In light of the recent appeal outcome for the Isle of Wight case, we have received a number of related enquiries about term time holidays.  Advice on some of the frequently asked questions is summarised below.

If you want to challenge a decision that was made in the Magistrates’ Court then you need to do so by way of an appeal. You will need to contact Her Majesty’s Courts and Tribunal Service (HMTCS) and you will be guided through the appeals process. It must be noted that those convictions were based on law at the time they were decided and so the Isle of Wight case may not be applied retrospectively. Government guidance on the appeals process can be accessed via: www.gov.uk/appeal-against-sentence-conviction/magistrates-court-verdict

We do not propose to review past cases of term-time holiday absence, either cases which went to court as a result of non-payment of the fine or the ones where fixed penalty notices were paid. These cases were brought at the time in line with relevant legislation, Department for Education guidance and local procedures.  

Only a headteacher can authorise absence from school. If there are other exceptional and compelling circumstances of which the school were not aware of, you can make a representation to the headteacher. If the school maintain the absence was unauthorised, the Penalty Notice will stand.

There is no right to appeal against a Fixed Penalty Notice, but you may choose not to pay and make your representations in the Magistrate’s Court. You should be aware that should the court find you guilty of the offence of irregular school attendance, they can impose a higher punishment upon conviction. The court may also charge you for court costs.

Yes, Section 576 Education Act 1996 defines ‘parent’ as:

  • Any natural parent, whether married or not
  • Any parent who, although not a natural parent, has parental responsibility as defined in the Children Act (1989) for a child or young person
  • Any person who, although not a natural parent, has care of a child or young person

The headteacher is the only person who can authorise absence. Headteachers are only able to authorise absence requests for exceptional reasons and each circumstance will be individual and likely to receive a different response.

Notices can be issued based on the referral criteria, which meets the threshold for irregular attendance at school. School attendance is crucial to children and any absence will have an impact on a child’s education. The headteacher will base their decision on whether the absence request is exceptional rather than based on a child’s attendance level.

We issue fixed penalty notices in accordance with the timeframe as laid out in law.  We are unable to assist with instalment payments.  If you cannot afford to pay the only place where this can be resolved is in the magistrate’s court following non-payment.  The magistrate’s court can make collection orders (paying by instalments) and will take your financial circumstances into account.

The only grounds by which a penalty notice can be withdrawn are:

  • It ought not to have been issued, ie where it has been issued outside of the terms of the Local Protocol or where no offence has been committed
  • It has been issued to the wrong person
  • It contains material errors
  • The fixed penalty notice remains unpaid and the County Council opts not to proceed with a prosecution under Education Act 1996 Section 444 (1)