Agenda Item No
The Vale of Glamorgan Council
Cabinet Meeting: 11 August, 2014
Report of the Cabinet Member for Children's Services
Fixed Penalty Notices (FPN) for School Non - Attendance
Purpose of the Report
1. To inform Members of Welsh Assembly national policy to issue Fixed Penalty Notices (FPNs) for non-school attendance, to come into force in September 2014.
1. That Members approve the proposed Code of Conduct for the issuing of FPNs in the Vale of Glamorgan.
2. That the urgent decision procedure as set out in article 13.09 of the Council's Constitution be used in view of the need to implement National policy regarding Fixed Penalty Notices (FPNs) for September 2014.
Reasons for the Recommendations
1. To ensure that full consideration is given to the proposed implementation of the Code of Conduct.
2. To secure implementation in schools in September 2014.
2. The Welsh Assembly Government’s policies for children and young people have their basis in the United Nations Convention on the Rights of the Child (UNCRC). In the Vale of Glamorgan we are cognisant of the UNCRC and have reviewed our School Attendance Policy accordingly.
3. The revised School Attendance Policy was approved by Cabinet on the 14th July 2014.
4. The revised policy advises School Governing Bodies not to authorise family holiday requests during term time except in exceptional and extenuating circumstances.
5. New Welsh Assembly legislation has empowered designated Vale of Glamorgan Council Education Welfare Officers to issue Fixed Penalty Notices (FPNs) to the parents of children and young people who have unauthorised absence from school [Appendix 1: WG Guidance on FPN]. The issuing of FPNs will remain the responsibility of the Education Welfare Service (EWS) in response to requests made by headteachers, their nominated deputies and the Police.
6. This report sets out how the Welsh Assembly legislation is reflected locally through the implementation of the FPN Code of Conduct (Appendix 2).
7. Regular and punctual attendance of pupils at school is a legal requirement and essential if pupils are to maximise the educational opportunities available to them. Parents/carers and pupils are supported at school and at local authority level to overcome barriers to regular attendance through a range of assessment and intervention strategies with sanctions of any nature only used where parental cooperation is either absent or deemed insufficient to resolve the presenting problem. Penalty notices are an added means of enforcing attendance where there is a reasonable expectation that its use will secure an improvement.
8. In law, an offence occurs if a parent/carer fails to secure their child's attendance at school and that absence is not authorised by the school. The legislation governing the implementation of FPNs is outlined in the following:
· Sections 444A and 444B of the Education Act 1996;
· The Education and Inspections Act 2006;
· The Education (Penalty Notices) (Wales) Regulations 2013;
· Rights of Children and Young Persons (Wales) Measure 2011;
· United Nations Convention on the Rights of a Child (the right to an education).
9. A penalty notice is a fine of £60 which may be issued to a parent/carer as a result of their child’s regular non-attendance at school.
10. The local authority is responsible for developing a Code of Conduct within which all partners will operate and as part of the statutory duties for ensuring school attendance it is appropriate that the EWS will deliver this responsibility on behalf of the Council.
11. The EWS investigates cases of irregular attendance from school and following a period of intervention and support to resolve will, if deemed appropriate instigate legal action. New Welsh Assembly national legislation bringing FPNs offer a means of swift intervention to prevent individual cases becoming entrenched and progressing to the local magistrate’s courts.
12. Welsh Assembly legislation requires penalty notices to be issued in circumstances based on clear threshold criteria which will be applied consistently and equitably across the Council and by all persons authorised to request the issuing a penalty notice i.e. police or head teachers, including their nominated deputies must comply with the guidance set out in this code of conduct.
Relevant Issues and Options
13. A penalty notice is £60 if paid within 28 days of receipt of the notice, rising to £120 if paid after 28 days (but within 42 days of receipt). If the penalty is not paid in full by the end of the 42 days the local authority must either prosecute parents/carers for the offence or withdraw the notice.
14. Prosecution proceedings (section 444(1) and (1A) of the Education Act 1996) will be for the offence of failing to secure attendance at school and not for non-payment of the fixed penalty fine.
15. Withdrawal of the notice can only take place in very limited circumstances as set out in this code of conduct.
16. The legislation allows headteachers and the police (including their nominated deputies) as well as designated local authority officers (EWO’s) the powers to issue FPNs. However, in order to avoid the issuing of duplicate penalty notices the management and processing arrangements in the Council will remain the sole responsibility of the EWS. The Service will work in consultation and partnership with schools and local police officers to ensure that:
· Notices are used consistently;
· Notices are not issued when proceedings under section 444 (1) or (1A) are being contemplated or have commenced;
· Relationships between schools and families are not compromised;
· There is no conflict with any other intervention already in place.
17. It will be the responsibility of schools/PRUs and/or police to request that the EWS issue an FPN and such notice will only be issued when there are circumstances of unauthorised absence. Only one notice will be issued to a parent in any one academic year but where there may be more than one poorly attending pupil in a family, notices may be issued on more than one child in that family.
18. There will be no restrictions on the number of times a parent may receive a formal warning of a notice and it will be at the discretion of the EWS whether to issue a notice on one or both parent/carer.
19. Penalty notices may be considered in the following circumstances:
· Where a minimum of 10 unauthorised sessions (5 school days) have occurred in the current term (these do not need to be consecutive);
· Unauthorised absence from school due to a term time holiday and where there is a history of poor attendance;
· Persistent lateness of more than 10 sessions in the current term i.e. arrived at school after the close of the registration period;
· Where parent/carers have failed to engage with the school and/or the EWS in attempts to improve attendance but where court sanctions have not been instigated;
· Where a pupil regularly comes to the attention of the police during school hours for being absent from school without an acceptable reason.
20. FPNs will not be used as an immediate action e.g. on pupils found to be truanting during truancy operations.
21. Once the circumstances are proven the EWS will then assess whether an FPN should be issued taking the following into account: -
· Level of absence;
· any Equalities considerations relating to the child or family (as listed in the Council’s Equality Policy);
· any statement of Special Educational Needs;
· history of the attendance issues and action taken;
· Welsh Government (WG) Guidance;
· likely effectiveness of Fixed Penalty Notice as a tool for obtaining compliance;
· level of parent engagement/cooperation, and
· any substantial adverse effect a fine will have on the welfare of the family.
22. The EWS will respond to all requests to issue penalty notices within ten school days of receipt and where satisfied that all relevant criteria are met. Requests can be generated by headteachers, the police. The EWS will:
· send a formal written warning to the parent/carer notifying them that they may receive a fixed penalty notice and why;
· set a period of 15 days to allow the parent/carer to respond. During the fifteen day period the pupil must not have any unauthorised absences from school;
· if at the end of the 15 days all facts are considered to be appropriate a penalty notice will be issued via first class post.
23. An FPN is £60 if paid within 28 days of receipt of the notice, rising to £120 if paid after 28 days (but within 42 days of receipt). If the FPN is not paid in full by the end of the 42 days the local authority must either: -
· prosecute parents/carers in the usual way using section 444(1) and (1A) of the Education Act 1996) or
· withdraw the FPN (in limited circumstances as set out in this Code of Conduct).
24. Only one FPN will be issued to a parent in any one academic year but where there may be more than one poorly attending pupil in a family, FPNs may be issued on more than one child in that family. It will be at the discretion of the EWS whether to issue an FPN on one or both parents/carers.
25. Whilst there are no restrictions on the number of times a parent may receive a formal warning of an FPN it would not be acceptable to issue â€œwarningsâ€ repeatedly without making further investigations of the wider circumstances.
26. Arrangements for payment will be detailed on the penalty notice. Once paid the parent/carer’s liability for the period in question is discharged and they cannot then be subsequently prosecuted under other enforcement powers (section 444 (1)) for the same period covered by the notice.
27. The Council will retain the revenue from penalty notices in order to cover the enforcement costs associated with the issue, collection or in the event of non payment cases progressing to prosecution.
28. Non-payment of a penalty notice may trigger prosecution procedures brought under section 444(1) of the Education Act 1996.
29. Once issued a penalty notice may only be withdrawn where it is proven that:
· the notice has been issued to the wrong person/to the incorrect address;
· the notice did not conform to this Code of Conduct;
· evidence demonstrates that the notice should not have been issued e.g. provision of medical evidence (parents/carers have the 15 day period to submit this evidence);
· circumstances warrant its withdrawal.
30. Notification of the withdrawal will be given to the parent/carer and any amount paid will be repaid to the person who paid it. No proceedings will continue or be instituted against the parent/carer for the offence in connection with which the withdrawn notice was issued or for an offence under section 444(1 and 1A) of the Education Act 1996 arising out of the same circumstances.
31. There is no statutory right of appeal against the issuing of a penalty notice. Should a parent/carer wish to contest a notice then they may submit complaints to the EWS and/or face proceedings in the Magistrates Court under section 444(1) of the Education Act 1996.
32. In order to ensure parents and carers are fully aware of the FPN legislation, it is expected that all schools with the support of their governing body clearly outline penalty notice information in their Attendance Policy.
33. The EWS will monitor the use of penalty notices as part of the quality assurance process with quantitative data being available to the Welsh Government on request.
34. The Council's Education Welfare Service (EWS) will closely monitor the issuing of FPNs evaluating compliance with the Code of Conduct and informing policy amendments as appropriate.
Resource Implications (Financial and Employment)
35. Schools have been provided with seed funding to help them establish the proactive Callio approach to improve attendance in their school.
Sustainability and Climate Change Implications
36. None in this report.
Legal Implications (to Include Human Rights Implications)
37. Under the Education Act 1996 children of compulsory school age should attend school from the start of the first term commencing after their fifth birthday. A young person ceases to be of compulsory school age on the last Friday in June of the school year in which they have their 16th birthday.
38. It is an offence for a parent of a child of compulsory school age that is registered at a school to fail to ensure that their child regularly attends their school. Failure to do so ensure creates an absolute offence. An amendment to the Education Act 1996 means that since March 2001 it has been an aggravated offence where a parent of a child of compulsory school age who knowing that their child is failing to attend regularly at school, fails without reasonable justification to cause their child to attend.
39. Under the Education (Pupil Registration) Wales Regulations 2010 the school is required to take an attendance register twice each day, at the start of the morning session and once at the start of the afternoon session. In the event of any action in respect of non-school attendance, it is the register that is the basis of the evidence relied upon.
40. Under section 437 of the Education Act 1996 Local Authorities have a duty to ensure that a child for whom they are responsible is receiving a suitable education, either by regular attendance at school or otherwise.
41. The Education (Pupil Registration) Wales Regulations 2010 gives schools discretionary power to grant leave for the purpose of an annual family holiday during term time. There is no automatic right to withdraw pupils from school for a holiday and in law parents have to apply for permission in advance. Such permission is usually granted in accordance with arrangements made by the governing body of the school. The Regulations state that only in exceptional circumstances may the amount of leave granted exceed (in total) more than 10 school days in any twelve week period.
42. However, the Vale of Glamorgan Council advises Governing Bodies to not authorise requests for family holidays during term time except where exceptional and extenuating circumstances apply.
The legislative Framework:
43. The following legislation, guidelines and documents underpin this policy:
· The Education (Penalty Notices) (Wales) Regulations 2013
· Education Act 1996
· Children Act 1989
· Children Act 2004
· Education and Inspections Act 2006
· The National Model for School Improvement
· National Service Framework for Children, Young People and Maternity Services in Wales, WAG (2005)
· Behaving and Attending: Action Plan Responding to the National Behaviour and
· Attendance Review, WAG (2009)
· Inclusion and Pupil Support, WAG Circular 47/2006
· Exclusion from Schools and Pupil Referral Units, WAG Circular 001/2004
· Improving Attendance 2006, Estyn
· Education (Admission of Looked After Children) (Wales) Regulations 2009
· Services for children and young people with emotional and mental health needs, Wales Audit Office and Healthcare Inspectorate Wales, 2009
Crime and Disorder Implications
44. Children and young people who attend school regularly are less likely to become engaged in any unlawful actively.
Equal Opportunities Implications (to include Welsh Language issues)
45. Every child has a right to attend school regularly. The body of this report is fully compliant with the United Nations Rights of the Child.
46. The need to secure high levels of school attendance underpins many of the Council's school performance and improvement objectives.
Policy Framework and Budget
47. Within existing policy framework and budgets.
Consultation (including Ward Member Consultation)
48. Headteachers have been consulted about the proposed changes affecting holidays in term time and are supportive of the change.
Relevant Scrutiny Committee
49. Lifelong Learning Scrutiny Committee
The Education (Pupil Registration) (Wales) Regulations 2010
National Model for School Improvement
United Nations Rights of the Child
Callio Attendance Strategy
Behaving and Attending: Action Plan Responding to the National Behaviour and
Attendance Review, WAG (2009)
Lynette Jones Head of School Improvement and Inclusion
David Davies, Lead Officer for Inclusion
Meryl Plummer, Lead Officer for School Improvement
Nicky Sturgess, Lead Officer or Behaviour Management and Attendance
Jenny Smith, Safeguarding Officer
Jennifer Hill, Director of Learning and Skills