Children's Services code of conduct for the issue of fixed penalty notices

Penalty notices may be issued to a parent as an alternative to prosecution for irregular school attendance under s444 of the Education Act 1996. They can only be issued in relation to pupils of compulsory school age in maintained schools, pupil referral units, academy schools, AP academies, and certain off-site places as set out in section 444A(1)(b).

The Education (Penalty Notices) (England) Regulations 2007 (and subsequent amendments) set out how penalty notices for school absence must be used.

A penalty notice can only be issued by an authorised officer, that is:

• a headteacher or a deputy or assistant head authorised by them
• an authorised local authority officer
• a police constable

In Dorset Council it has been agreed that the council will be the organisation that issues penalty notices. 

The national framework for penalty notices is published in statutory guidance ‘Working together to improve school attendance’. It provides further national guidance on the operation of penalty notice schemes for school absence in England. 

The education-related provisions of the Anti-Social Behaviour Act 2003 apply to all parents who fall within the definition set out in Section 576 of the Education Act 1996. This defines ‘parent’ as: 

• All natural parents, whether they are married or not.  
• Any person who, although they are not a natural parent, has parental responsibility (as defined in the Children Act 1989) for a child or young person.  
• Any person who, although not a natural parent, has care of a child or young person. Having care of a child or young person means that a person with whom the child lives and who looks after the child, irrespective of what their relationship is with the child, is a parent in education law.  

Under this code of conduct, a penalty notice can be issued to each parent believed to be liable for the offence or offences

Research published by the Department for Education in May 2022 found pupils with higher attainment at KS2 and KS4 had lower levels of absence over the key stage compared to those with lower attainment.

Pupils who:

• did not achieve the expected standard in reading, writing and maths in 2019 had an overall absence rate of 4.7% over the key stage, compared with 3.5% among pupils who achieved the expected standard and 2.7% among those who achieved the higher standard
• did not achieve grade 9 to 4 in English and maths GCSEs in 2019 had an overall absence rate of 8.8% over the key stage, compared with 5.2% among pupils who achieved a grade 4 and 3.7% among pupils who achieved grade 9 to 5 in both English and maths

For the most vulnerable pupils, regular attendance is also an important protective factor and often the best opportunity for needs to be identified and support provided.

Where difficulties arise with school attendance, professionals should take a ‘support first’ approach in line with the DfE’s ‘Working together to improve school attendance’ guidance, only resorting to legal enforcement when necessary. The aim is that the need for legal enforcement is reduced by taking a supportive approach to tackle the barriers to attendance and intervening early before absence becomes entrenched.  

The national framework for penalty notices is based on the principles that penalty notices should only be used in cases where: 

• support is not appropriate (e.g. a term time holiday) or where support has been provided and not engaged with or not worked
• they are the most appropriate tool to change parental behaviour and improve attendance for that particular family
   

When the national threshold has been met: when a school becomes aware that the national threshold has been met, they must consider whether a penalty notice can and should be issued.

The national threshold has been met when a pupil has been recorded as absent for 10 sessions (usually equivalent to 5 school days) and within 10 school weeks, with one of, or a combination of the following codes:

• code G (the pupil is absent without leave for the purpose of a holiday)
• code N (the circumstances of the pupil’s absence have not yet been established)
• code O (Unauthorised absence) (none of the other rows of Table 3 in regulation 10(3) of the School Attendance (Pupil Registration) (England) Regulations 2024 applies)
• code U (the pupil attended after the taking of the register ended but before the end of the session, where no other code applies)

Working together to improve school attendance (applies from 19 August 2024) provides further information on absence codes.

Dorset Council aims to work proactively with parents and schools to take a ‘support first’ approach. Therefore, a penalty notice will be issued under two categories.

No Support: this includes:

• Unauthorised Leave of Absence Penalty Notices. These will be issued where a pupil has 10 or more sessions within a consecutive 10 school week period and where the school have recorded the absence as unauthorised for the purpose of a holiday (G Code). 
• Students who are found to have been in a public place with no reasonable justification. 
• Where Dorset Council has agreed that support available is unlikely to result in a behaviour change or where similar support has recently been explored and was unsuccessful. 

Support First:

• Attendance Penalty Notices will be issued where a pupil has 10 or more unauthorised absence sessions within a consecutive 10 school week period during a Notice to Improve and/or Education Planning Meeting Review period. Schools should follow Dorset’s attendance guidance ‘Promoting Education Attendance in Dorset available on the Dorset Attendance Service (Inclusion) | Dorset Nexus page. 

When a school becomes aware that the national threshold has been met, they must consider whether a penalty notice can and should be issued or not. 

If repeated penalty notices are being issued and they are not working to change behaviour they are unlikely to be most appropriate tool. The national framework for penalty notices sets out that a maximum of 2 penalty notices per child, per parent can be issued within a rolling 3-year period (for holidays taken after the 18 August 2024). If the national threshold is met for a third time (or subsequent times) within 3 years, Dorset Council will utilise other legal interventions available to Local Authorities, such as Education Supervision Orders and criminal prosecution and consideration of Parenting Orders.

For the purpose of the escalation process, previous penalty notices include those not paid (including where prosecution was taken forward if the parent pleaded or was found guilty) but not those which were withdrawn. 

The following considerations will be made before issuing (or requesting that another authorised officer issues) a penalty notice to ensure consistency of approach.

In cases where support is not appropriate (for example, for holidays in term time), consider on a case by case basis:

• is a penalty notice the best available tool to improve attendance and change parental behaviour for this particular family or would one of the other legal interventions be more appropriate?  
• is issuing a penalty notice in this case appropriate after considering any obligations under the Equality Act 2010 
• (For Local Authorities only) is it in the public interest to issue a penalty notice in this case given the local authority would be accepting responsibility for any resulting prosecution for the original offence in cases of non-payment?  

Schools must request a penalty notice for a period of unauthorised leave of absence within two school weeks of the child returning to school. Penalty notices requested for an unauthorised leave of absence after this time will not be processed. This will help to issue penalty notices in a timely manner. 

A penalty notice request for an unauthorised leave of absence will not be processed without the following documentation attached to the request: 

• the parental request for leave in term time 
• evidence of the school’s response unauthorising the request 
• a registration certificate signed and dated by the Head Teacher 
• where the parents did not request a leave absence, a letter from the Head Teacher to the parent informing them that their child has had a period of unauthorised absence

In cases where support is appropriate, consider on a case-by-case basis:

• has sufficient support already been provided? Sufficient support may include: adaptations made by the school,  a parenting or attendance contract, advice from Dorset Council's Inclusion Leads, Family Network Meetings, Targeted Youth Work, and Family Help
• is a penalty notice the best available tool to improve attendance and change parental behaviour for this particular family or would one of the other legal interventions be more appropriate?  
• is issuing a penalty notice in this case appropriate after considering any obligations under the Equality Act 2010 
• is it in the public interest to issue a penalty notice in this case given the local authority would be responsible for any resulting prosecution for the original offence in cases of non-payment?

If the answer to the above questions is ‘yes’, then a penalty notice (or a notice to improve in cases where support is appropriate) will usually be issued.

A notice to improve is a final opportunity for a parent to engage in support and improve attendance before a penalty notice is issued. If the national threshold has been met and support is appropriate but offers of support have not been engaged with by the parent or have not worked, a notice to improve should usually be sent to give parents a final chance to engage in support. An authorised officer can choose not to use one in any case, including cases where support is appropriate, but they do not expect a notice to improve would have any impact on a parent’s behaviour (e.g. because the parent has already received one for a similar offence).

The issuing of a notice to improve will need to be an agreed action at an inclusion panel which is attended by the school’s link Inclusion Lead.

Once the issuing of a notice to improve has been agreed, the school will complete Dorset Council’s notice to improve template and will require their link Inclusion Lead’s signature before sending to families. 

The length of the improvement period will usually be six weeks. The parent will be notified if consideration is being given to issuing a penalty notice before the end of the improvement period.

Sufficient improvement to attendance will be decided on a case by case basis but there should be no further unauthorised absences during the improvement period.

The school and Inclusion Lead will monitor the attendance over the monitoring period and the Inclusion Lead will discuss the attendance at the Dorset Council Legal Attendance Panel. The decision to issue a penalty notice will be made at this panel following the Inclusion Lead’s liaison with the school. 

For complex cases or cases where a notice to improve or penalty notice is not deemed to be appropriate or likely to change parental behaviour, these will be referred to Dorset Council’s Inclusion Legal Panel.

Penalty notices can be issued where a pupil regularly arrives to school late (after the attendance register has closed and where a U code has been entered into the register in line with the school’s published attendance policy) and where no valid reason is provided for the lateness, meaning that it could have been avoided. 

A penalty notice can be issued when a child is suspended/excluded from school and is found in a public place during normal school hours on the first five days of each and every suspension or permanent exclusion (Section 103 Education and Inspections Act). The suspending/excluding school must have informed the parent/s, in writing, of their duty to ensure their child is not found in a public place and a warning that a penalty notice can be issued if their suspended or excluded child is found in a public place during normal school hours.

Where a pupil is present in a public place with no valid reason during the first five days of a suspension/exclusion, Dorset Council would be responsible for issuing a penalty notice if the school is in their area. Where the child has been permanently excluded, the issuing of penalty notices would be actioned by the local authority in which the child resides.

Dorset Council’s Penalty Notice Business Support Team will be responsible for the issuing of penalty notices which will include:

• Checking that all of the required documentation has been provided within the agreed timeframe and that the national threshold has been met. 
• Issuing penalty notices to parents within 3 months from the date that the request was received. Notices will be sent by first class post. 
• If penalty notice is unpaid, Penalty Notice Business Support Team will add the information to the Legal Inclusion Panel Tracker.  
• The Penalty Notice Business Support Team will confirm with a ‘Certificate of Service’ that the penalty notice was sent to each parent and upload to the case file for review.  
• Learning & Belonging Team Managers will allocate cases to Inclusion Leads for the preparation of the prosecution case file. 

A penalty notice may be withdrawn by the local authority named in the notice under the following circumstances:

• where the local authority deems it ought not to have been issued i.e. where it has been issued outside the terms of the local code of conduct or where the available evidence does not support the issuing of a penalty notice
• it appears to the local authority that the notice contains material errors such as: 

a) Incorrect key details

• wrong name of the recipient (that could identify the wrong person) 
• wrong child’s name  
• incorrect address or identifying information that casts doubt on who the notice applies to

b) Wrong offence details: 

• incorrect date(s) of the alleged offence 
• referring to the wrong school or setting 

c) Administrative errors affecting fairness: 

• failing to include or where there are errors in required information, such as payment deadlines, amount payable or how to make payment 
• issued outside required timescales 

If the Learning & Belonging Team Manager or Inclusion Lead agrees that there are grounds to withdraw a Penalty Notice, the Learning & Belonging Team Manager will present the information to a Learning & Belonging Team Manager from a different Locality to review the information and process the withdrawal request. This will ensure impartiality of decision making. 

f there is agreement to withdraw the Penalty Notice, The Penalty Notice Business Support Team will send a ‘No Further Action Letter’ to the parent(s) to notify them that the Penalty Notice has been withdrawn.  

Arrangements for payment will be detailed within the Penalty Notice. The first penalty notice issued to the parent for a child will be charged at £80 if paid within 21 days, rising to £160 if paid between days 22 and 28.

In circumstances where a second Penalty Notice is issued to the same parent for the same pupil within 3 years of the first, the second notice is charged at a flat rate of £160 and is payable within 28 days. There is no reduced sum available in this instance.

There are no payment plan options available in respect of penalty notice fines issued under this Code of Conduct. Fines must be paid in full by the relevant payment deadlines.

There is no statutory right of appeal against the issuing of a penalty notice. Parents should contact the issuing school if they feel a Penalty Notice has been requested in error.

If a Penalty Notice is not paid by the end of the 28-day period, the local authority must decide either to prosecute for the original offence to which the notice applies, or withdraw the notice if the withdrawal criteria are met. Parent(s) can only be prosecuted once 28 days have expired, and full payment has not been made. 

In exceptional circumstances, Learning & Belonging Team Managers may consider whether to accept payment in lieu of prosecution, only if new material information comes to light after the decision to prosecute was taken. 

Exceptional Circumstances may include:

• If a parent is unavoidably able to make payment within the 28-day period, for example, due to hospitalisation, detention or due to being outside of the country before the notice was issued and can evidence that they did not return until after the 28-day period. 

Exceptional Circumstances would not include:

• a parent stating that they did not receive the penalty notice through the post or that the postal service had failed to deliver the notice. A certificate of service is deemed as evidence of ‘good service’. 

Exceptional Circumstances will be considered on a case-by-case basis. 

Payment in Lieu of Prosecution for Exceptional Circumstances will only be offered at the higher amount of £160. 

The Local Authority will inform the requesting or current school if penalty notices are unpaid, withdrawn or prosecuted following non-payment. This will be done via the school’s link Inclusion Lead following Dorset’s Inclusion Legal Panel or once the outcome of court hearing is known. 

Where pupils move between local authority areas, Dorset Council can be contacted on [email protected] to find out if penalty notices have been issued previously.  

Where pupils attend a school in Dorset Council but live in a different Local Authority area (home authority), Dorset Council will liaise with the pupil’s home authority to ensure appropriate support is in place where appropriate. 

 

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