School Attendance — Key Legal Issues
Frequently Asked Questions
What happens if I receive a penalty notice for school attendance?
A fixed penalty notice (FPN) for school non-attendance can be paid at the reduced rate within 21 days (£80 per parent per child) or at the full rate within 28 days (£160). If the notice is not paid, the local authority can withdraw the notice and prosecute under EA 1996 s.444 instead — which carries a more serious penalty including potential criminal conviction. Before paying, a solicitor reviews whether the penalty notice was lawfully issued — checking whether: the absences were correctly recorded as unauthorised (not authorised) by the school; the notice contains all required information under the Education (Penalty Notices) (England) Regulations 2007; and the LA followed its published Code of Conduct for penalty notices (required since August 2024). If the notice is defective, it can be challenged — potentially avoiding payment and any subsequent prosecution.
My child cannot attend school because of anxiety — can the LA prosecute me?
Where a child cannot attend school because of a genuine medical condition — including anxiety, depression, school phobia, or other mental health conditions — the absence is authorised under EA 1996 s.444(3)(b) as "absence due to sickness." The key is evidence: the parent needs medical evidence confirming that the child is prevented from attending by their condition. A GP letter, CAMHS assessment, or consultant's report that specifically addresses the child's inability to attend school (not merely recommends reduced attendance) is most effective. Where the LA has commenced a prosecution despite medical evidence, a solicitor challenges the prosecution on the authorised absence ground. If the child has SEN or a disability that underlies the anxiety, the LA's failure to arrange appropriate provision (EHCP, EOTAS) may be an additional ground of challenge and a defence to the prosecution.
I want to home educate my child — do I need the LA's permission?
No — a parent can lawfully home educate their child without the local authority's permission (EA 1996 s.7). The parent must ensure the child receives efficient full-time education suitable to their age, ability, aptitude, and any SEN — but how that education is provided is entirely the parent's choice. The LA cannot demand to inspect the home or to see the child's work — but can make written enquiries (and visit, by invitation only) where it has reason to believe the child is not receiving suitable education. Where the child is on a school roll, the parent must inform the school (in writing) that they are withdrawing the child to home educate. Where the child has an EHCP, the situation is more complex: the LA may have continuing duties to arrange and fund the special educational provision in the EHCP even during home education — a solicitor advises on the EHCP interaction and the LA's continuing duties.
What is the difference between s.444(1) and s.444(1A)?
Section 444(1) — the basic offence — requires only that the child failed to attend school regularly. It is a strict liability offence: the prosecution does not need to prove fault or knowledge. The maximum penalty is a level 3 fine (£1,000). The only defences are the authorised absence exceptions in s.444(3)–(6) (illness, religious observance, no transport, school leave). Section 444(1A) — the more serious offence (inserted by CDA 1998) — additionally requires proof that the parent knew about the non-attendance and failed without reasonable justification to cause the child to attend. Maximum penalty: 3 months' imprisonment and/or a level 4 fine (£2,500). For s.444(1A), the "reasonable justification" defence is broader than the s.444(3) list — it can include cases where the child's SEN, mental health, or medical condition prevents attendance and the parent is taking all reasonable steps to address it. A solicitor advises on which offence the LA has charged and the applicable defences.
The LA has issued a School Attendance Order — what can I do?
A School Attendance Order (SAO — EA 1996 s.437) is issued where the LA is not satisfied that the child is receiving suitable education. Before the SAO is issued, the LA must follow a procedure: (1) a preliminary notice requiring the parent to satisfy the LA that the child is receiving suitable education; (2) if not satisfied, a draft SAO specifying a school; and (3) a 15-day period in which the parent can choose a different school or register for home education. Where the parent is home educating and has demonstrated that the child is receiving suitable education, the LA cannot lawfully issue an SAO. A solicitor challenges unlawful SAOs — by making representations to the LA during the 15-day consultation period, and by judicial review where the LA issues the SAO despite the child receiving suitable education. Failing to comply with a valid SAO is a criminal offence (s.443).