Student attendance and Covid: A legal view

Written by: Karen Holden | Published:

Despite the pressure building on government to scrap fines for non-attendance, the rules remain in place for the term ahead. So – do headteachers have to seek fines for parents who do not send their children back to school? We asked legal expert Karen Holden for her view


The government has decided that attendance at school this term is to be mandatory, unless otherwise agreed. However, with lots of anticipation and trepidation surrounding the return to school, this could put headteachers in an awkward position.

The Department for Education’s advice to parents about the return to school (DfE, 2020a) states: “School attendance will be mandatory from the beginning of the new academic year. This means that it is your legal duty as a parent to send your child (if they are of compulsory school age) to school regularly.”

Futhermore, a Covid-19 specific addendum to the DfE’s existing attendance guidance (DfE, 2020b) reminds schools: “From the start of the autumn term 2020 pupil attendance will be mandatory and the usual rules on attendance will apply, including: parents’ duty to ensure that their child of compulsory school age attends regularly at the school where the child is a registered pupil; schools’ responsibilities to record attendance and follow up absence; the ability to issue sanctions, including fixed penalty notices, in line with local authorities’ codes of conduct.”

This means that, when absence is not agreed, fines can be issued. While there has been much debate and criticism over the issue of fines (see later), it seems that, officially, they are back in full force.

As you will know, your local council can give each parent a fine of £60, which rises to £120 if you do not pay within 21 days. If you do not pay the fine after 28 days you may be prosecuted for your child’s absence from school.

So with the fine for absent children potentially reaching £120, it is crucial that parents and schools are aware of the law surrounding absenteeism.


The legal requirements

Parents or carers of a child have a legal responsibility to ensure their child receives a suitable education, this is usually achieved through regular attendance at school. Under current regulations, schools must put their children’s names on the Admissions Register. If a pupil does not attend school, they are marked as absent.

This absenteeism can be either authorised or unauthorised. Schools will usually authorise an absence if:

  • The child is too ill to attend and the school accepts this.
  • The child is being educated off-site.
  • The parent has got the advance permission of the school.
  • The child has a medical appointment.
  • The child is on study leave.
  • The child has been excluded.

Schools are required to “regularly” inform the local authority of any child who is “regularly” absent from school. The local authority and the school can use several legal powers to enforce attendance including a fine (as described above), an Education Supervision Order, a Parenting Order or a School Attendance Order.

It should be noted, and is explained in the DfE’s addendum (2020b), that local lockdowns and being required to self-isolate/quarantine will be considered valid reasons not to attend school.


Current process around fines

Usually, the school will decide if an absence is to be classed as unauthorised. This would then be referred to your local authority who can decide to issue a fine.

Currently, pupils who have to self-isolate as they, or a member of their household, has symptoms or confirmed coronavirus will not need to be added as an absence statistic, and therefore will not be fined.

However, if a parent is not making their child attend school because they do not believe it is safe, the child will need to be marked as absent. If this happens for a prolonged period of time, the child may be reported to the local authority, leading to the issuing of a fine.

As schools have a legal requirement to report absent children, it is not advised that they take it upon themselves to decide whether to report absent children.

Instead, the required report should be made and the local authority, who issues fines, will make the final call.

If a fine is issued, there is no right to appeal. If a parent does not pay the fine, the local authority can proceed to prosecution through the courts or withdraw the notice.


Discrimination

Headteachers should remain consistent in their approach to pursuing parents and ensure action is non-discriminatory.Their decision cannot be determined by gender, age, ability or ethnicity, otherwise their actions could come under scrunity and in breach of the Equality Act.


The reality

The government has been steady in their recent position that schools are safe places and that non-attendance is much more of a threat in terms of the educational damage it risks for pupils. As such, on the face of it and as things currently stand at the time of writing, parents and carers in England who do not send their children back to school in September will face fines.

However, a number of organisations have called upon the government to abandon its plans to fine non-attending parents. On Monday (August 31), the National Association of Head Teachers said that there “there will still be some families who do not yet feel ready to return”.

General secretary Paul Whiteman said: “If you are a parent and you are worried about safety, a fine is unlikely to make you feel any safer. The government understands this, but the threat of fines still remains, so we’re urging the government to take the threat of fines off the table, for the coming term. This would send a powerful signal to parents and families and could well mean that more of them are willing to bring their children back to school, which is what we all want to see.”

What impact this has remains to be seen. However, while not guaranteed, it is unlikely that there will be an all-encompassing, zero-tolerance approach to the issuing of fines if a parent decides not to send their child to school.

Schools and local authorities will – to some degree – understand the anxiousness felt by some parents. And so it is hoped that an approach will emerge whereby local authorities attempt to contact families and talk to them before thinking about issuing fines.

I think that it is likely that an open dialogue with schools and the local authority will become the first point of call in order to build trust with families and persuade them to send their children back to school.


What should parents do if they receive a fine?

If a parent has concerns about the safety of their child, they should first look at risk assessments and policies put in place by the school. If they still have concerns, they should raise them with the school directly and then with the council if the matter is not resolved.

Parents must be clear that what they are concerned about goes against government advice and where possible we would advise them to get physical evidence of any breach. If a parent is then fined for their child not attending school, they may have a defence – although this is not guaranteed.



Further information & resources

  • DfE: What parents and carers need to know about early years providers, schools and colleges in the autumn term, last updated August 21, 2020a: https://bit.ly/3bdh6ET
  • DfE: Addendum: recording attendance in relation to coronavirus (COVID-19) during the 2020 to 2021 academic year, last updated August 6, 2020b: https://bit.ly/2YRkbFL


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