Legal Interventions

Below you will find guidance and all the documents you will need for the fixed penalty notice (FPN) process. If you require any guidance, call the fixed penalty notice advice line on 01603 222499.

Guidance for parents is available on the Norfolk County Council website.

Introduction

If a child of compulsory school age who is registered at a school fails to attend regularly at that school, then the parent is guilty of an offence contrary to Section 444(1) of the Education Act 1996. Section 23 of the Anti-Social Behaviour Act 2003 and section 103 of the Education and Inspections Act 2006 enable Local Authorities to issue penalty notices for certain offences. These notices can be used as an alternative to prosecution under section 444 of the Education Act 1996 and enable parents to discharge potential liability for conviction for that offence by paying a penalty. Penalty notices are fines of £120 reduced to £60 if paid within the initial 21-day period.

A penalty notice is a suitable intervention in circumstances where the parent is judged capable of securing their child's regular attendance at school or whereabouts during school hours but is not willing to take responsibility for doing so. However, the Local Authority does not advocate their use for entrenched patterns of poor attendance and will consult with a school when it's suitability as a legal intervention is uncertain.

Parents have a responsibility in law to ensure the regular school attendance of their child. The supreme court concluded that the term 'regular' means in accordance with the school's rules. Therefore, schools' expectations regarding attendance must be clear and unambiguous and your policy and procedure must be fair and consistent.

Local Authorities and schools are required to adhere to legislation and a Local Code of Conduct when carrying out their duties surrounding penalty notices and making decisions to issue penalty notices under section 444 of the education Act 1996. Details of how the penalty notice scheme must operate is set out in The Education (Penalty Notices) Regulations 2007.

The Attendance Team are responsible for Norfolk's Local Authority Code of Conduct and are responsible for the arrangements in place for administering penalty notices. We continually strive to ensure a consistent, fair, and transparent application of the policy regarding penalty notices throughout the County.

Step 1: Raising Awareness

All schools wishing to issue penalty notices under the code of conduct must evidence that literature provided to parents relating to attendance, such as a school prospectus, attendance and behaviour policies, home school agreements and website information is readily accessible and includes the warning that parents may be issued with a penalty notice for any unauthorised absence, including unauthorised term-time holidays.

Your schools' attendance policy should clearly lay out which types of absence will be unauthorised. See below examples of absence that you may decide to unauthorise:

• Birthdays (theirs or other family members)
• Shopping
• Day trips
• Looking after brothers or sisters or ill relatives
• Caring for a disabled parent
• Having their hair cut
• Special treat
• Market day
• Closure of a sibling's school for INSET (or other) purposes
• Term-time holiday

Ultimately, it is always at the discretion of the headteacher whether an absence is to be authorised or not.

Step 2: The Warning Letter

Schools wishing to participate in the fixed penalty notice scheme must issue all parents/carers with the NCC Warning Letter informing them of the process; this should be issued annually at the start of each academic year and dated accordingly or if a child joins mid-year, they need to receive the Warning Letter at the time of induction. The Warning Letter that schools are required to issue is available on this page in the file section below. Schools should not adjust the content but only place on school headed paper.

It is important that all parents receive the Warning Letter, it is therefore imperative that you ensure your parent contact details are correct and kept updated.

Who is a Parent?

Under education law (section 576 of the Education Act 1996) a parent is defined as:

• All-natural parents, whether they are married or not
• Any person who, although not a natural parent, has responsibility for the care of a child or young person. This 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 a parent in Education Law

It is important to name anyone who is a 'parent' under this definition on the referral form so that they can be included in any proceedings. They should also be included in any school actions, communications or interventions prior to referral.

Step 3: Monitoring Attendance

It is essential that you have a robust system and protocol in place for monitoring irregular attendance. Schools should ensure that reasons for absence are sought from parents and that procedures are in place to investigate and resolve any unexplained absence. It is important that absence is denoted by the correct code. Once an attendance concern is raised it is best practice to address this as quickly as possible. You should follow you school's attendance procedures as outlaid in your School Attendance Policy.

Step 4: Referring for a fixed penalty notice

In considering the use of a penalty notice, it is important to establish that an offence is being committed and that the issue of the notice is likely to be an effective means of improving the child's school attendance. There must be evidence that:

• The child is of statutory school age
• The child is a registered pupil at a school
• The child is failing to attend school regularly

It should be established that none of the available statutory defences apply, these are:

• The pupil has been granted leave by the head teacher
• The pupil was unwell or prevented from attending by any unavoidable cause
• The absence was on a day exclusively set aside for religious observance by the religious body to which the parent belongs
• The Local Authority have a duty to make travel arrangements in relation to the child for the purpose of facilitating the child's attendance at the school and have failed to discharge that duty
• The parent can show that their trade or business requires them to travel, and the child has attended school as regularly as the nature of the trade or business allows, and the child has attended school for at least 200 sessions during the preceding twelve months

Headteachers should be aware that by submitting requests for a penalty notice to be issued, they are assuring the Local Authority that they accept and support that, should the parent choose not to make payment within 28 days of the fine being issued, the Local Authority Attendance Service will progress the matter in line with Section 444 Education Act 1996 resulting in the parents being prosecuted for their failure to ensure the regular attendance of their child.

To ensure consistent delivery of penalty notices, the following criteria will apply:

• At least 9 sessions (4.5 school days) lost to unauthorised absence by the pupil during the last 6 school weeks

The issuing of a penalty notice is considered appropriate:

• When the pupil has been absent for the purposes of a holiday during term-time and the absence has not been authorised by the school
• When the pupil has arrived in school after registration has closed and the session has been recorded with a 'U'
• When the pupil has accrued unauthorised absence from school and following consultation with the Local Authority Attendance Service it has been agreed that the issuing of a penalty notice is an appropriate early intervention tool

Request for Leave of Absence

Where a request for leave of absence has been submitted it is important to reply to the request in a timely manner to allow the parent(s) to make an informed decisions as to whether they still want to take the leave at that time or give them the opportunity to make alternate arrangements.

The Education (Pupil Registration) (England) (Amendment) Regulations 2013, state headteachers may not grant any leave of absence during term time unless there are exceptional circumstances (no definition is given within this legislation). However, the DfE states that "As headteachers should only grant leaves of absence in exceptional circumstances it is unlikely a leave of absence will be granted for the purposes of a family holiday". (Working together to improve school attendance, DfE, September 2022 (opens new window))

DfE guidance is clear that parent should plan their holidays around school breaks and avoid seeking permission from schools to take their children out of school during term time. An application for leave of absence should not be granted unless it is made in advance by a parent the pupil normally lives with, and the school is satisfied that there are exceptional circumstances based on the individual facts and circumstances of the case which justify the leave. A leave of absence is granted entirely at the headteacher's discretion. Headteachers should determine the number of sessions a child can be away from school if the leave is granted.

In cases meeting referral criteria for issue of a penalty notice and whereby unauthorised term-time holiday absence is the only reason for absence, Norfolk County Council will only issue a penalty notice to the parents who took the pupil out of school or gave permission for the pupil to be removed from school for the purpose of a term time holiday. In all other cases of unauthorised absence, Norfolk County Council will issue a penalty notice to all parents under the definition above. For these reasons, it is crucial that schools ensure their admissions registers are up to date and accurate and all parental information is provided within the online referral form.

The information contained within the referral, along with the supporting evidence, will form the basis for any legal action. The information must be accurate and as extensive as possible.

The referral should be submitted to the Fixed Penalty Notice Officer within 15 school days of the absence return date. This enables us to keep within the legal timeframes for issuing a penalty notice.

The online referral form should be accompanied by the relevant attachments:

• A copy of the Warning Letter, showing the date it was issued
• A copy of the leave of absence request (if a request was made)
• A copy of your response to the leave request or evidence to show that the parent has been informed that the absence will result in fixed penalty notice (If no request was made the parent(s) should still be informed that the school is referring the matter to the LA)
• A copy of the attendance herringbone clearly showing the child has returned to school

Refer a parent for a Fixed Penalty Notice (opens new window)

Step 5: The Fixed Penalty Notice

A Fixed Penalty Notice will be issued to each parent for each child. Penalty notices are £120 to be paid within 28 days and decrease to £60 if paid within 21 days of issue. Schools are notified by email by the Attendance Team when the penalty notice has been issued.

On occasions a parent may need assistance to make payment, perhaps English is not their first language or there is limited understanding. Parents can call us to support with this, however, please see below for instruction on how to help with this if required.

The parent would need to have the following details for help to be provided:

• Account number
• Invoice number
• Bank details

Online: The quickest and easiest way to pay a penalty notice is via our website, please visit www.norfolk.gov.uk/payinvoice (opens new window).

By telephone: Please call 0344 800 8020 and select 'option 4 - automated payment line'. Please have the invoice number, customer number and card details with you.

Once payment is made within 28 days this discharges the liability for prosecution and the case will be closed by the Attendance Team.

Step 6: Non-Payment of the FPN

If the penalty notice is not paid in full by the end of the 28th day the Attendance Team may issue the parent(s) with a 'Notice of Intended Prosecution'. The prosecution would not be for non-payment of the penalty notice, but for the original offence of failing to ensure the child's regular attendance at school. The Attendance Team will use the fact that a penalty notice has been issued and remains unpaid as evidence. The Attendance Team will look at all the circumstances of the case when assessing the likelihood of securing a conviction for the offence.

The Attendance Team will then:

• Request a completed Headteacher Certificate from the school
• Create and send the parent(s) a 'Single Justice Procedure Notice' which allows the parent to respond and say how they wish to plea to the charge, provide any relevant mitigation and to supply any details surrounding their financial circumstances
• The same documentation is compiled and submitted to the court

• The team will then notify the school of the outcome of the hearing

Withdrawal

There is no right of appeal by parents against a penalty notice. If the penalty is not paid in full by the end of the 28-day period, the local authority must decide either to prosecute for the original offence to which the notice applies or withdraw the notice.

The Education (Penalty Notices) (England) Regulations 2007 limit the circumstances in which Local Authorities can withdraw penalty notices and the normal response to non-payment of a penalty notice will be prosecution for the offence to which the notice relates.

The only grounds in which a penalty notice, once issued, can be withdrawn are:

• It ought not to have been issued i.e., 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 penalty notice remains unpaid, and the Local Authority opt not to proceed with a prosecution under Education Act 1996 Section 444 (1)

Where schools wish to provide evidence to the Local Authority Attendance Team to consider withdrawing a penalty notice once issued, they must email cscourt@norfolk.gov.uk with the pupil's attendance record showing the absences in question as authorised and with clear rationale why authorisation is being given.

This decision should not be taken lightly by schools, and we will always advise for schools to think about the implications when thinking of making a withdrawal, will your approach to authorising absence still be consistent and fair.

Fixed penalty notices in response to Year 11 absence

To support secondary schools with trying to improve Year 11 absence in the last few months that they are required to attend statutory education and to ensure that they are in school attending regularly in the lead up to their formal examinations. We have provided a specific 'Warning Letter' that can be issued to the parents of students in Year 11.

Where there are concerns about the attendance of a Year 11 pupil that a school has been unable to address through supportive measures, they will be able to warn the parents of that pupil that continued unauthorised absence will result in the issuing of a fixed penalty notice.

The 'Year 11 Warning Letter' can be issued to parents and where attendance does not improve after the issue of this letter and the criteria of at least 9 sessions (4.5 school days) is lost to unauthorised absence by the pupil, schools will be able to refer for a fixed penalty notice in the usual way. We do not see this as an appropriate intervention for cases of entrenched patterns of poor attendance, but rather an efficient tool to remind and focus parents and young people that they still need to attend school regularly until the last Friday in June in the academic year in which the young person turns 16.

This warning letter will cover the 6 weeks prior to the start of Year 11 examinations period. This is a set period decided by the Attendance Team and schools should not alter this. All referrals must be submitted no later than the week preceding the May half term. However, if the criteria is met sooner a referral can be submitted without delay.