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Term Time Holidays and Unauthorised Absence

on Friday, 21 April 2017.

On 6 April just as schools, parents and pupils were turning to thoughts of the Easter holidays, the Supreme Court handed down its judgement in one of the most high profile and controversial cases in recent times, with wide ranging effects.

Isle of Wight v Platt

Section 444(1) of the Education Act 1996 ('the Act') provides 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.

The Facts

Mr Platt sought permission from his daughter's school to remove her during term-time for a holiday. The Headteacher refused the request, the father took her on holiday anyway, causing her to miss seven school days. Her attendance prior to this had been 90.3%.

Mr Platt was issued with a penalty notice which he refused to pay and was subsequently prosecuted in the Isle of Wight Magistrates Court. The Magistrates found that there was no case to answer, taking into account his daughter's attendance records outside of the holiday period.

By the time the matter reached the Supreme Court, the Court had to decide the meaning of 'fails to attend regularly' - it having three possible meanings:

  1. At regular intervals
  2. Sufficiently frequently
  3. In accordance with the rules

The Supreme Court unanimously held that 'regularly' in this context means 'in accordance with the rules prescribed by the school'.

What Does This Mean?

On a strict interpretation, any failure to attend in accordance with the school rules will amount to a failure to attend regularly, which means that a criminal offence has been committed, unless one of the four statutory defences applies. This means that an offence will be committed in cases of:

  • a single day or half-day unauthorised absence
  • arriving after the register has closed
  • leaving early without authorisation
  • any other failure to attend in accordance with the school rules

It is suggested that local authorities will now need to revisit their Codes of Conduct required under the Education (Penalty Notices) (England) Regulations 2007, in consultation with all schools and academies in their administrative area to ensure that that sensible and consistent prosecution policies are established, so that technical and minor breaches do not lead to criminal prosecution as a matter of course.

The main judge in the case - Lady Hale - said in relation to this "this can involve the use of fixed penalty notices, which recognise that a person should not have behaved in this way but spare him a criminal conviction. If such cases are prosecuted, the court can deal with them by an absolute or conditional discharge if appropriate".

Lady Hale, also somewhat unusually provided clear policy reasons for the judgement, echoing the perspective of many educationalists in this controversial area:

"It is not just that there is a clear statistical link between school attendance and educational achievement. It is more the disruptive effect of unauthorised absences. These disrupt the education of the individual child. Work missed has to be made up, requiring extra work by the teacher who has already covered and marked this subject matter with the other pupils. Having to make up for one pupil’s absence may also disrupt the work of other pupils. Group learning will be diminished by the absence of individual members of the group. Most of all, if one pupil can be taken out whenever it suits the parent, then so can others. Different pupils may be taken out at different times, thus increasing the disruptive effect exponentially."

For further information, please contact Tracey Eldridge-Hinmers in our Academies team on 020 7665 0802.