We have said that the Government plans to use the school attendance order process as a sanction for parents who do not comply with registration requirements. The proposed new school attendance order process is intended to mirror the system that exists already, with the relevant section of the Education Act being replaced by new sections inserted via the Schools Bill in order to add additional triggers for starting the process, a new fast-track timetable, plus new powers for local authorities to engage with academies at the point of finding a school to be named in the order.
Since the sanctions and enforcement measures in the Schools Bill have come under sustained criticism as the Bill has gone through the House of Lords, it would seem helpful to set out the current process as a reference point.
The current school attendance order starts with “a notice to satisfy” under section 437 (1) of the Education Act 1996 “If it appears to a local authority that a child of compulsory school age in their area is not receiving suitable education *, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education.” https://www.legislation.gov.uk/ukpga/1996/56/section/437
Historically this has been the sole criterion for triggering the start of the school attendance order process, namely if it appears to the authority that a child is not receiving suitable education. Prior to 2019 government guidelines gave the impression that the local authority needed to set out any concerns about provision and give the parent time to address them before escalating to a formal notice. However, since revised guidance was issued in 2019 [https://www.gov.uk/government/publications/elective-home-education ] the Government’s position has been that absence of information is sufficient to give the appearance of a child possibly not being educated, although current Elective Home Education Guidance for Local Authorities also encourages the LA to address matters informally at least in the first instance. An initial informal approach means that the LA is not expected to proceed immediately to issuing a formal notice.
Once parents have been served with the notice to satisfy, if they subsequently fail to satisfy the authority, and if the local authority considered it expedient that the child attend school, then the authority should move to serving the actual school attendance order as per section 437 (3) [https://www.legislation.gov.uk/ukpga/1996/56/part/VI/chapter/II/crossheading/school-attendance-orders ].
Provisions for the service of school attendance orders where the child has an Education Health Care Plan [EHCP] [https://www.legislation.gov.uk/ukpga/2014/6/part/3/crossheading/education-health-and-care-plans/enacted ] can be found in Section 441 of the Education Act 1996 [https://www.legislation.gov.uk/ukpga/1996/56/part/VI/chapter/II/crossheading/school-attendance-orders ] .
Currently, parents served with a school attendance order who then don’t enrol their child in school are in breach of the order which is a potential criminal offence. The local authority is empowered to bring a prosecution and the case is heard in the magistrates court. Parents have the option of attending court, pleading not guilty, and then providing evidence to the court that the child is in fact receiving efficient education suitable to age ability aptitude and any special educational needs, as this would demonstrate that they are fulfilling their duty under section 7 which is a legitimate defence against the offence. Details can be found in the current section 443 of the Education Act 1996 [https://www.legislation.gov.uk/ukpga/1996/56/part/VI/chapter/II/crossheading/school-attendance-offences-and-education-supervision-orders ].
Attendance Orders may also be revoked as set out in section 442 [https://www.legislation.gov.uk/ukpga/1996/56/part/VI/chapter/II/crossheading/school-attendance-orders ] if the authority accepts that satisfactory arrangements have been made for suitable education otherwise than at school. Section 442 also indicates that the system for revoking attendance orders does not apply across the board and in particular it does not apply if the child has an EHCP [https://www.legislation.gov.uk/ukpga/2014/6/part/3/crossheading/education-health-and-care-plans/enacted ] which names the school.