Education penalty notice code of conduct

Statutory framework

Under Section 23 of the Anti-Social Behaviour Act 2003, LA officers, head teachers and the police have the discretionary power to issue penalty notices in appropriate cases of unauthorised absence from school. The power of issuing a penalty notice provides an alternative to the prosecution of parents under Section 444 of the Education Act 1996. This enables parents to discharge the potential liability for conviction for that offence, by paying a penalty of £60 per parent if paid within 21 days, or £120 per parent per child if paid within 28 days.

If penalties remain unpaid within the specified timescales, Southwark Council will only pursue a prosecution if the penalty notice was issued in line with this code of conduct. All monies collected directly by schools must be sent to the LA. The Single Justice Process may be used if the number of unpaid fines is excessive.

Since 1 September 2013, head teachers have been unable to agree leave of absence during term-time unless they're satisfied that there are exceptional circumstances. Exceptional circumstances include:

1. Service personnel returning from a tour of duty abroad where it is evidenced the parent will not be in receipt of any leave in the near future that coincides with school holidays.
2. Where an absence from school is recommended by a health professional as part of a parent’s or child’s rehabilitation from a medical or emotional issue.
3. The death or terminal illness of a person close to the family.
4. Where the school has evidence that there are other pressing personal issues for a family that would warrant a short break from school.

Any examples provided are illustrative rather than exhaustive. It's acceptable to take a pupil’s previous record of attendance into account when the school is making a decision. The fundamental principles for defining exceptional circumstances are that these are considered rare, significant, unavoidable and short. The term unavoidable means that any event could not reasonably have been scheduled at another time.

Head teachers are able to agree the absence of a child in exceptional circumstances and this discretion can also be used to determine the length of the authorised absence. Any existing support being offered to a family through FEH remains in place as long as it is needed, even if there is a prosecution or penalty notice process in place.

Local arrangements

The EIT discharges the responsibility for issuing penalty notices in Southwark and instigating other education-related legal action against parents or carers when appropriate. Penalty notices may only be issued in Southwark in accordance with the terms of this code of conduct.

The purpose of the code of conduct is to ensure that the power to impose such notices is applied fairly and consistently across the LA and that suitable arrangements are in place for the effective and efficient administration of the scheme. In implementing this code of conduct, the LA will liaise when appropriate with neighbouring education and Police authorities. This code complies with The Education (Penalty Notices) (England) Regulations (2007).

Southwark has three objectives in regards to the use of penalty notices:

1. Our process must be as equitable as possible.
2. The case must be able to stand up in court.
3. The case must not undermine or replace support and intervention to address complex and unmet needs.

Before referring cases for penalty notices

Any penalty notice has the potential to lead to prosecution if unpaid. This requires a case to pass both evidential and public interest tests. In cases where a school has concerns about a pupil’s attendance, the school’s authorised person for attendance must ensure that contact has been made with the parent or carer in order to try to resolve any issues and difficulties to avoid having to proceed with a penalty notice, which should be used as a last resort. All the contacts and interventions with parents or carers must be recorded.

If a request for leave of absence is declined by the school and the unauthorised absence meets the threshold, the school should make parents aware that a request to issue a penalty notice will be made to the EIT. In deciding whether to refer parents for the issuing of a penalty notice, the school should take into account the pupil’s overall level of attendance and previous leave of absence in term-time.

All requests will be reviewed at Southwark’s penalty notice panel, which is held by EIT every 4 to 6 weeks. Schools are welcome to attend. The purpose of the panel is to ensure that Southwark’s three objectives set out in paragraph 10 are met.

A penalty notice may be issued in the following circumstances:

• Unauthorised term-time leave (including leave for family holiday) (G): Any parent who takes a child out of school for term-time leave of 10 or more morning and afternoon sessions during any 100 possible school sessions or 50 school days, not authorised by the school under exceptional circumstances, may receive a penalty notice. The unauthorised term-time leave does not have to be consecutive for a parent to receive a penalty notice. In deciding whether to refer a case for the sanction of a penalty notice, the head teacher should take into account whether there is known evidence of previous unauthorised term time leave taken in the last 3 years and evidence of parents having been warned previously about a potential penalty notice
• Exclusion: Where a child is found in a public place during school hours of day one to five of any fixed term or permanent exclusion
• Lateness: In cases where the (U) code is given for lateness after the register is closed if there are 20 (U) codes or more in a half term
• Persistent absence in the Spring Term for year 11 pupils: Where at least 40 sessions (20 school days) have been lost to unauthorised absence by the pupil during one school term or consecutively across two terms and/or unauthorised absence for any public examination of which dates have been published beforehand
• Non Engagement: In cases where all attempts have been made to engage the family and they have failed all meetings offered and attendance remains a concern

Page last updated: 16 January 2023