Fixed penalty notices - code of conduct

Introduction

This code of conduct is issued by the Local Authority (LA) in accordance with the requirement of regulation 14 of The Education (Penalty Notice) (England) Regulations 2007. This follows consultation with the police and schools in Lincolnshire as required by the Regulations.

The purpose of the code is:

  • to ensure consistency in approach to the issuing of fixed penalty notices throughout Lincolnshire and
  • to provide a clear, consistent and transparent approach to the use of the fixed penalty system for:
    •  all school types
    •  the police
    • parents in Lincolnshire

Regular and punctual attendance at school or any alternative provision is essential for children to realise their educational potential. It is a legal requirement for all children of compulsory school age.

Schools have a multitude of tools available to ensure regular school attendance. Such strategies will be sufficient for most families where attendance is an issue. However, fixed penalty notices are an option where other strategies have been unsuccessful. They should not be used as a first resort.

The Regulations allow the LA, schools and police (or PCSOs with delegated authority) to issue fixed penalty notices. This code is drafted with reference to the process that the LA and Police will adopt. If schools wish to issue fixed penalty notices, rather than allow the LA to do so, they must comply with the principles established in this code.

Schools that intend to issue their own notices should provide the LA with a named contact. This ensures provision can be made to establish that any notices are issued in a fair, consistent and lawful manner.

Schools should remember that if they elect to issue notices, payment will still be to the LA.

The law

School attendance

Under Section 7 of the Education Act 1996 the parent of every child of compulsory school age has a duty to ensure that the child receives efficient full-time education suitable to the child's age, ability and any special educational needs they may have. This duty can be met by:

  • the child regularly attending a school or alternative educational provision made by the LA or the school, or
  • by the parent providing other suitable educational provision

The parent may be guilty of an offence under Section 444 of the Education Act 1996 if they fail to ensure:

  • their child’s regular attendance at a school at which they are a registered pupil, or 
  • other educational provision is made for their child

Where a child has not attended regularly at school, the LA have the options of:

  • issuing a fixed penalty notice in respect of the parents of the child
  • bringing proceedings before the family courts for an Education Supervision Order or 
  • prosecuting the parents under Section 444 before the Magistrates, Court

Non-school attendance includes any day when a child should be in attendance at school, and they are absent without the authorisation of the school. This includes:

  • unauthorised holidays during term time 
  • persistent late arrival at school beyond the registration period

Fixed penalty notices can be issued for persistent lateness where the child arrives after the closure of registration. This is coded U in the register.

Excluded Pupils

Section 103 of the Education and Inspections Act 2006 makes it a duty for parents in relation to pupils subject to a fixed period or permanent exclusion, to ensure that their child is not present in a public place during school hours, without reasonable justification, during the first five days of any such exclusion. If a child is present in a public place during the first five days of an exclusion during school hours the parent may be guilty of an offence for which they can be prosecuted by the LA before a magistrates' court.

Alternatively, the school can deal with the matter by issuing a fixed penalty notice.

Note

To proceed with a fixed penalty notice and, or prosecution, under section 103 of the Education and Inspection Act 2006 the head teacher of the school must have issued a formal warning letter to the parent(s) under Section 104 of the Act. This letter should inform the parent of their liability and set out the dates on which this liability arises. (This should be included in the standard exclusions letter). This can be included in the letter sent to the parent providing other information about the exclusion. It can be served by first class post, but where the opportunity arises to hand it to the parent(s) this is the preferred method.

Where an excluded pupil is of compulsory school age, the head teacher must also notify parents without delay, and by the end of the afternoon session. For the purpose of the warning letter above, the letter should include:

"that for the first five school days of an exclusion (or until the start date of any alternative provision where this is earlier) parents are legally required to ensure that their child is not present in a public place during school hours without reasonable justification, and that parents may be given a fixed penalty notice or prosecuted if they fail to do so. This will therefore apply to you from (Insert first date of exclusion)  to the end of the school day on (insert fifth date of exclusion)."

Fixed penalty notices

The Education (Penalty Notices) (England) Regulations 2007 as amended set out the framework for the operation of the penalty notice scheme.

Parent

For the purposes of education law and this code of conduct a "parent" means all natural parents, whether they are married or not. It includes any person having parental responsibility for a child (a person under 18 years of age) who, although not the child's natural parent, has care of that child. Having care of a child means an adult with whom the child lives and who looks after the child on a day-to-day basis. Any reference to a "parent" in this code of conduct is a reference to anyone having care of a child as set out above.

Use of fixed penalty notices

The inclusion and attendance team are responsible for delivering this function. Penalty notices will only be issued within this Code of Conduct.

Fixed penalties are one of the tools available to the LA to tackle poor school attendance and anti-social behaviour issues.  Where thought appropriate alternative approaches such as Education Supervision Orders and prosecution may be utilised at the discretion of the LA.

Use of fixed penalty notices will be restricted to two per child per academic year. In situations where a parent meets the criteria for more than one penalty notice to be issued because there is more than one child with irregular school attendance, multiple issues may occur. Where a child resides with two parents a separate penalty notice will be issued to each parent.

Parents must always be forewarned of the possible issue of a fixed penalty notice by the school through a Fixed Penalty Notice Formal Warning letter. A Formal Warning letter (see sample letter 1 and sample letter 2) can also be issued by the school in cases where a fixed penalty may not be suitable. An example of this might be when parents request a period of absence that does not meet the 15% absence criteria but it is still a period of unauthorised absence. This would show consistent practice in relation to application for absence during term time.

There is no restriction on the number of times a parent may receive a Formal Warning letter of the possible issue of a fixed penalty notice.

If a penalty notice is issued whether paid or not it may be used in evidence in subsequent criminal proceedings in relation to either:

  • non-­school attendance or
  • being in a public place during school hours whilst excluded from school

This includes regular patterns of term time absence such as unauthorised annual holidays.

Where a penalty notice may be Issued

Fixed term penalties will only be issued where the LA is satisfied that the criteria for prosecution would be met if the option of a fixed penalty notice is not taken up by the parent. The circumstances in which a notice may be issued are:

  • where a child is absent from school due to unauthorised absence of 15% or above over a six-week period. This will include lateness after the close of registration when code U is used
  • where a child is present in a public place during school hours without reasonable justification during the first five days of any exclusion

Non-attendance

It must be remembered that to count as non-attendance at school the absence must be unauthorised. The Education (Pupil Registration) (England) (Amendment) Regulations 2013 have removed the reference to holidays during term time. It now provides that a leave of absence during term time will only be granted where an application is made in advance to the school and the school consider that the leave of absence should be granted due to exceptional circumstances relating to that application.

What amounts to "exceptional circumstances" is a matter for the discretion of the head teacher. It should be judged on a case-by-case basis.  It is unlikely to amount to an exceptional circumstance if it is merely claimed that:

  • a holiday abroad can only be afforded in term time or
  • that a parent is unable to take leave during school holidays. (This is a matter between the parent and their employer).

Head teachers should also consider asking for evidence of the circumstances that has arisen where appropriate.

Action by the police

Before issuing a penalty notice yourself or approaching the LA to issue the same it is important to ensure that evidence is available to support the fixed term notice. This will often require the school and the police sharing information and working together.

Where a pupil is found in a public place when they should be in school or during a period of exclusion, enquiries should be made to ensure in terms of a fixed penalty notice for failure to attend regularly at school under section 444(A) EA 1996 that:

  • the pupil's absence on the day they are found in public by the police taken with other absences over a six-week period gives an unauthorised absence rate of 15% or above
  • the school do not already have actions in place aimed at addressing the non-school attendance of the pupil where the issue of a fixed penalty notice would be counterproductive or inappropriate. This could be for example if the matter is already being referred to the LA for prosecution

If a child is in a public place during a period of exclusion it will need to be verified with the school:

  • that the child was found in a public place during school hours in the first five days of that exclusion and
  • that the appropriate Formal Warning letter was served on the parents at the time the exclusion was imposed

Consideration should also be given to calling at the pupil's home address to ascertain whether a parent is at home in a supervisory capacity and to make them aware that the child has been found in public when either the child should have been in school or during the first five days of an exclusion.

Procedure for issuing penalty notices

Penalty Notices will only be issued within the terms of the Code of Conduct. The Inclusion and Attendance Team of the LA are responsible for the administration and issue of penalty notices in Lincolnshire. The LA will ensure that penalty notices are properly issued. They will only issue them for offences where the LA is satisfied that the matter meets the threshold for a prosecution. To request a fixed penalty notice schools must use the online system.

The school will receive an acknowledgement that the request for a fixed penalty notice has been received, authorised and paid. The school will be notified once the period of 28 days has passed if the fine has not been paid. Requests for the issue of fixed penalty notices will be accepted from:

  • schools in Lincolnshire
  • the Lincolnshire Police
  • within the LA

They must include:

  • the name and address of all the parent(s)
  • the name and address of the child concerned and their date of birth
  • details of the offence in terms of documentary evidence. Where the matter relates to an unauthorised absence from school, this should include a signed copy (by head teacher or those with delegated authority within the school) of a pupil absence record (PAR) form showing the period of unauthorised absence
  • confirmation of the date or dates over which the offence was committed

Applications should be made as soon after the date(s) of the alleged offence as possible. Late submission of a request for a fixed penalty notice may result in the application being rejected if the time that has elapsed since the alleged offence is such that court proceedings would no longer be viable if the option of a fixed penalty notice is not taken up by the parent.  (There is a six month time limit on issuing legal proceedings).

The Court expects action to be taken without undue delay in order to address non-attendance issues. Any unreasonable delay could result in a prosecution case being weakened. More importantly, the education opportunities for the child are being missed.

On receipt of an application for a fixed penalty notice to be issued the LA will assess whether the application:

  • is a proper matter upon which a fixed penalty notice should be issued and
  •  meets the criteria provided for either a formal warning of a fixed penalty notice

The LA will communicate its decision in writing to the applicant.

Where an application for a formal warning or fixed penalty notice is accepted, the LA will issue the warning or notice in writing to the parent(s) concerned. Where there is more than one parent a separate written notification will be sent to each parent for each child that the notice relates to. The notice will be sent to the parent by first class post and by email if one is provided by the school.

Effect of penalty notice being issued

The penalty notice is presumed to be served on the parent to whom it is sent on the second working day after it was posted.

If a parent pays the penalty notice within 21 days from the date it is served the sum due from the parent to discharge the penalty notice is £60.

The parent can still pay the notice after 21 days but the payment increases to £120. This must be paid before 28 days have passed from the date of service.

If a parent pays the amount due within the times set out above then no further action will be taken against that parent for the offence on the date(s) set out in the penalty notice.

Once a penalty notice has been issued no prosecution for the non­-attendance detailed in the penalty notice can be brought against the parent until the payment period of 28 days has passed and the fixed penalty has not been paid.

All payments must be made to the LA.

Appeal against the penalty notice

There is no right of appeal against a penalty notice. A parent can either:

  • accept and pay the fine or 
  • decline payment subject to them being aware that further action as set out below may be taken by the LA if the penalty notice remains unpaid

The LA has the discretion to withdraw the notice if the LA is satisfied that:

  • the fixed penalty notice has been sent to the wrong person
  • it contains a material error (in these circumstances a fresh amended penalty notice could still be issued)
  • if for any other reason the LA are of the opinion that it should not have been issued

Non-payment of the penalty notice

Non-payment of a fixed term penalty notice is not in itself an offence. The fixed penalty notice is issued as an alternative to bringing a prosecution in the magistrates' court for the offence set out in the Formal Warning letter. However, if the offer of dealing with the offence as a fixed penalty matter is not taken up by payment of the sum due within the 28-day period then consideration will be given to issuing criminal proceedings against the parent in the magistrates' court for the non­attendance of their child.

If a fixed penalty notice has not been paid after 28 days from the day it is taken to be served then the LA will contact the school or police officer who made the application for the penalty notice to be issued. They will discuss with them the available evidence to bring proceedings in the magistrates' court for the alleged offence under Section 444 of the Education Act 1996 or Section 103 of the Education and Inspection Act 2006.

If the LA believes that prosecution is a viable option, then a request will be made that the school or police officer concerned submits a report to the Local Authority's Legal Panel.  This will enable a formal decision to be taken as to whether to proceed with the matter by issuing criminal proceedings before the magistrates' court.

Prosecution of offences is a matter within the discretion of the local authority. A decision will be taken in line with the LA prosecution policy for these matters. Proceedings, where commenced, will be issued by the LA.

If a prosecution is brought and the parent is found guilty or pleads guilty then a conviction for an offence under the following both carry a fine of up to a maximum of £1000:

  •  Section 444(1) of the Education Act
  • Section 103 of the Education and inspection Act 2006

In addition the LA will seek to recover costs in respect of bringing the proceedings. Further, a successful prosecution will result in a parent having a criminal record. This could be disclosed should they apply for a position where a DBS check (formerly known as a CRB Criminal Records Bureau Check) is required.

Administration of fixed penalty notices

All administrative functions in respect of the issue of fixed penalty notices and the collection of payments for the same will be undertaken by the LA. This is unless schools or academies choose to issue their own, although non-payment of fines will still be monitored by the LA.

The LA will keep central records in respect of the issue of such notices within Lincolnshire. This must include:

  • a copy of each notice issued
  • a record of all payments made and the date of payment
  • whether the notice was withdrawn and on what grounds
  • whether the parent(s) following non-payment of the same was subsequently prosecuted for:
    •  the offence set out in the notice or
    • an offence arising out of the same circumstances

Sample letter 1: for persistent absence or lateness

Dear

Fixed Penalty Formal Warning

Name of child or young person:

Date of birth:

Pupil registered at:

This letter is a Fixed Penalty Formal Warning and is being sent to you because your child has an unacceptable level of unauthorised absence.

During the period (date) to (date),(child'sname) was absent or late on (number of) sessions out of (number) possible half-day sessions of which (number) were unauthorised * and ( in addition she or he was late on (number) occasions.) *delete as appropriate

(child's name)'s attendance will be reviewed from the date of this warning, with the expectation that his/her attendance increases to 100%. Failure to comply may result in a fixed penalty being issued.

Please note if your child's attendance has fallen below 90% due to illness or a medical condition you will be required to provide evidence showing that you have sought appropriate medical advice.

Requesting the Local Authority to issue a fixed penalty notice is a strategy used by schools to address the unacceptable levels of attendance of children attending their school under the following legal framework:

  • Section 7 of the Education Act 1996 places upon parents a duty to ensure that their child receives efficient full-time education either by regular attendance at school or otherwise
  • Where a child is a registered pupil at a school and the parent fails to ensure that child's regular attendance at school the parent is liable to be prosecuted for a criminal offence under Section 444 of the Education Act
  • In cases where this duty is not being fulfilled Section 4448 of the same Act empowers the Local Authority to issue a fixed penalty of either £60 or £120.

Should you wish to discuss this matter further or to access appropriate support, please contact the school on the above contact details.

Yours sincerely

Sample letter 2: for holidays during term time

Dear

Fixed Penalty Formal Warning

Name of child or young person:

Date of birth:

Pupil registered at:

This letter is a Fixed Penalty Formal Warning and is being sent to you because you have requested a period of absence from school for your child during term time.

The period you have requested from (date) to (date), is not deemed to be exceptional circumstances and therefore will be coded as unauthorised absence. If you choose to ignore this warning, a fixed penalty notice will be issued for the above period of absence.

A fixed penalty notice is a strategy used by schools to address the unacceptable levels of attendance of children attending their school under the following legal framework:

  • Section 7 of the Education Act 1996 places upon parents a duty to ensure that their child receives efficient full-time education either by regular attendance at school or otherwise
  • Where a child is a registered pupil at a school and the parent fails to ensure that child's regular attendance at school the parent is liable to be prosecuted for a criminal offence under Section 444 of the Education Act
  • In cases where this duty is not being fulfilled Section 4448 of the same Act empowers the Local Authority to issue a fixed penalty of either £60 or £120.

Should you wish to discuss this matter further, please contact the school on the above contact details.

Yours sincerely

Amendment to Lincolnshire’s fixed penalty notice

Applying for a fixed penalty notice (FPN) for non-school attendance 

Holidays and persistent absence

The Department for Education (DfE) are releasing a national code of conduct for the issuing of fixed penalty notices (FPNs). This will be something everyone is required to adopt. It will provide consistency in the approach to FPNs. This should be with us in several months.

 In the interim, we will provide an update on our requirements for the issuing of FPNs. The update will show revised changes for FPNs for term-time holidays.

Summary

All schools should ensure their attendance policy:

  • is up-to-date
  • displayed on their website
  • includes all relevant guidance, legislation and any FPN templates

Schools and academies are required to be proactive in sharing these documents with parents. This includes the relevant legislation relating to the issuing of FPNs for unauthorised absences.

  • when promoting good attendance, schools should refer to their attendance policy when communicating with parents or carers. This includes via their website, parent hub or school app communications. This will:
    • ensure that parents are kept up-to-date with any changes to legislation
    • provide a new method of prior warning to parents, without the need to re-issue formal legal warnings
  •  we now accept emails when applying for FPNs relating to holidays taken during term-time. We also accept other forms of communication, such as parent hub or school app messages sent as a direct or generic message to all parents
  • formal warning letters will still be required when applying for an FPN for persistent absence

Please see below for each relevant scenario.

FPN: term-time holiday - parental holiday request received

Where there is a request for a term-time holiday (leave of absence) that the school refuses because it does not meet the criteria for ‘exceptional circumstances’, the school must issue a letter or email in response to parent. The letter or email should:

  • give their reasons for refusal to authorise
  • include the LCC template warning
  • confirm to the parent that if the child is not in school on the days requested the absence will be recorded as unauthorised absence. (The school will presume they have gone away on their intended holiday).

Schools should then advise the parent that they will request us to issue an FPN for a holiday taken during term-time.

FPN: term-time holiday – no parental holiday request received

For cases where:

  • evidence suggests the absence was a term-time holiday
  • no application or request for leave is received from parents in advance of a holiday
  • there may be other factors which imply to the school that the family were away on a holiday

The school can apply for an FPN retrospectively. Schools can now request an FPN from us, without formally issuing parents with a warning letter. This relates only to holidays during term-time.

It is, however, best practice to write to families, referencing:

  • their attendance policy
  • any recent communications regarding their stance on holidays taken during term-time

Over the last two to three years, the use of FPNs for term-time holidays has grown. It is now established nationally as a method to discourage absence during term-time.

Schools who have regularly communicated with their parents regarding the use of FPNs, can now request these, specifically in the case of holidays, without issuing a formal written warning prior to the holiday.

Schools will be able to demonstrate to us how they have communicated to parents. This could be via their attendance policy, and through regular informative updates, such as:

  • emails
  • school publications
  • parenthub or apps. We can also accept photos of their website publications

FPN: persistent absence and, or unauthorised absence

When requesting an FPN from us for persistent absence, schools will be required to share copies of all recent and relevant communications with parents. This demonstrates they have provided guidance to all parents on the use of FPNs for unauthorised absences.

Schools wanting to request that we issue an FPN for persistent absence should first discuss this with our attendance team. 

Schools have a designated attendance and safeguarding education welfare officer. They should consult with them prior to requesting an FPN for persistent absence. FPNs for persistent absence are only successful if issued within the first term of poor attendance. This should be taken into account when considering issuing an FPN in these circumstances.

 The attendance team may agree to an FPN as a next action. In this circumstance, schools will issue parents with an FPN formal warning letter. The letter must be sent to each individual parent. It must inform them that if the child’s school attendance does not improve, the school will request an FPN. If the FPN fine remains unpaid, we could choose to prosecute the parents, for failure to ensure regular school attendance.

We will not discuss parental complaints, appeals or queries regarding FPNs issued. We will advise parents to liaise with their schools regarding fines issued. We will only withdraw or re-issue a fine if directed so by the requesting school.