Sanctions for not complying with registration requirements – school attendance order process

The Schools Bill says that parents who are eligible to register but do not do so or who fail to answer supplementary registration questions will receive a preliminary notice to satisfy the authority as to educational provision, which represents the start of the school attendance order process.  This is a fundamental shift in the use of school attendance orders from the current trigger of its having to appear to the local authority that the child is not receiving suitable education. In the present system parents are required to satisfy the authority about educational provision in situations when there are concerns about provision, including an absence of information about provision.  

However, in future, a deficit in registration information will be treated as parents possibly being in breach of their duty under section 7 of the Education Act 1996 [ ]  For a child who hadn’t previously been known to the local authority as being not on a school roll, either the parent would notify the authority or the local authority would somehow become aware that a child was in scope of registration and approach the parent with a request for particular information. Please be aware that this article is being published after the Schools Bill was amended in the House of Lords and that the information required of parents is no longer open-ended as it was when the Bill first appeared but is now limited to contact details plus the means by which the child is being educated (which is still to be defined in law)    

Nevertheless, a striking feature of the sanctions set out in the Schools Bill is that parents who notify the authority voluntarily would still be penalised in the same way if they subsequently failed to supply answers, as would families who are already “on the books.”  

The Department for Education may believe that a preliminary notice to satisfy is no more than an inconvenience for “genuine home educators” and would only cause difficulties for families where there is a problem with the home education or where home education is non-existent.  Baroness Barran, the Government’s Education Minister in the Lords, has said “The preliminary notice stage already provides parents with the opportunity to evidence that their child is in receipt of a suitable education”  

NB all  references to “suitable education” in the Schools Bill CNIS Register are to be understood as follows. New clauses will be added to the Education Act 1996 after section 436A (3) [ ] [children missing education, first introduced in 2006] which says “In this Chapter, “suitable education”, in relation to a child, means efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have” “Chapter” means Chapter II School Attendance which runs from section 436A through to section 448, as shown here  

From our contact with families, it is a very serious matter when parents receive a legal notice warning them that they will have to send their children to school unless they satisfy the local authority that the home education is valid, especially where the provision may not look anything like what is happening in schools.  Parents of a child with an EHCP can be under particularly inappropriate scrutiny and judgment once they are served with a preliminary notice.  For example local authorities might wrongly believe that parents are required to make the special educational provision set out in the EHCP.  

Moreover, the Government also intends to speed things up with school attendance orders as it believes at present it all takes too long.  Where current law does not specify a time limit for sending the preliminary notice, the Government intends to introduce a new deadline of 3 days; where a period of 15 days is currently allowed for parents to respond, the Government proposes to shorten it to 10; and where the LA has identified a school to be named in the order, it must henceforth issue the order within 3 days.  These shorter timescales would apply across the board to ALL school attendance orders not just those issued for defaulting over registration.  

The new fast-track system would appear to go against current Elective Home Education Guidance [ ] which recommends that local authorities should attempt to resolve matters “through informal contact and enquiries” before moving to formal action. [Source = paragraphs 6.4 – 6.10 EHE Guidance 2019] However, this would obviously be superseded by new statutory guidance on the use of school attendance orders when the new law comes into force.  The Government has now said there will be a consultative forum which will include home educating parents to work on a draft of the new guidance before it goes out to public consultation where everyone will get a chance to comment.   

Contrary to what has been said in some quarters, the Schools Bill does still contain provisions for school attendance orders to be revoked (cancelled) where parents can demonstrate that arrangements have been made for the child to receive suitable education otherwise than at school.    Information about this can be found under the subheading Revocation of school attendance order on request.  The same exceptions to revoking will also be carried over to the new system where the child has an EHCP as the parent will have to go through annual review and possibly appeal to tribunal first.  The Government Minister in the House of Lords has specifically said the new system “does not prevent a parent seeking to have the name of a school changed or removed from their child’s education, health and care plan, in line with the existing process and timescales set out in the Act. Following that process, a parent may apply for the school attendance order to be revoked as normal.” [Reference here ]  

The other major way that the Government is proposing to change the school attendance order system is to increase the level of fines for breaching school attendance orders, although it should be noted that fines for school attendance orders do not operate in the same way as truancy fines where the fine is issued and the parent has the choice of paying or challenging the fine in court.  In contrast, as explained by the Education Minister in the House of Lords, the issue of a fine for breaching the attendance order only arises after a parent has been successfully prosecuted. “If parents fail to demonstrate that their child is receiving a suitable education, it is right that the local authority begin the process of issuing a school attendance order. If the parent is unable to evidence that the education they are providing is suitable, the process will lead to an order being issued. If the parent then breaches the order, they may be fined by the magistrates’ court.” 

During the passage of the Schools Bill through the House of Lords, the Government has come up with various justifications for increasing the level of fines; its current argument is that it is intended to discourage parents from deregistering to avoid penalties for truancy.  Fiona Nicholson has provided FAQ to the new school attendance order process here  

Finally it should be noted that many pages of the Schools Bill [ ] are taken up with new powers to bring the school attendance order process for academy schools and alternative provision academies in line with maintained schools. The proprietor of an academy will henceforth be on the same footing as the governing body of a maintained school.  In other words, once they have been served with notice of intention to name and wishing to object they will be given 10 days to apply to the Secretary of State for a direction that their school not be named.  

Next page