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Education: What the law has to say about absenteeism

09 February 2024

Absent pupils are giving the authorities plenty to think about, says Howard Dellar


THE Government and education leaders are grappling with increasing levels of pupil absenteeism and a significant rise in home schooling. Church schools should be aware of a greater national focus in both areas, and a concern that the existing legal framework is desperately under-resourced.

In terms of absenteeism in schools, a recent announcement was made by the National Director of Education, Lee Owston, on a government blog, that, with high levels of absenteeism, schools must demonstrate accordingly that they are doing “all they reasonably can” to raise attendance. If they can demonstrate this, they will be judged “favourably” during inspections by Ofsted.

Ofsted is concerned that persistent school absence is one of the most significant continuing effects of the pandemic. The latest data show that nearly one in four pupils missed ten per cent of their schooling in the autumn of 2022: nearly double the 2019 figures. The 2023 figures are eagerly awaited.

Many of the powers to take legal action over absenteeism, however, lie firmly with our cash-strapped local authorities and court systems. These legal powers include:

  • First, local authorities have legal powers to take action through the courts for persistently non-attending pupils. Under section 444(1) of the Education Act 1996, parent(s)/carer(s) can be prosecuted through the magistrates’ court for failure to ensure regular attendance. The penalty under the Act can be a fine up to £1000. Relatively few cases are ever brought.
  • Second, and even rarer, where there is a more serious offence under Section 444(1A) (in the circumstance where the parent knows that his/her child is failing to attend school regularly, and fails, without reasonable justification, to cause him/her to do so), there is a maximum fine of £2500, a term of imprisonment of up to three months, or both for the most serious of cases. A warrant could also be issued requesting the defendant parent/carer(s) to attend court for sentencing.
  • Third, the local authority can also take action through the Family Proceedings Court, under Section 36 of the Children Act 1989, and apply for an education supervision order, making the local authority responsible for the education of the child — an action taken to support parents.

The local authorities can also serve school attendance orders, under section 437-443 of the Education Act 1996, in respect of pupils who are not registered at any school, or registered to be receiving education rather than at school.

The increasing rise of pupil absenteeism highlights the importance of the teacher-parent relationship and an urgent need for better data-monitoring systems. These latter can be costly and time-consuming to procure, but necessary.


IN TERMS of home schooling, the Department for Education (DfE) has also held a consultation on changes to its non-statutory guidance for schools and parents. Officials pointed to developments since the guidance was last updated in 2019, not least that home schooling has grown by 60 per cent since the pandemic began. It is estimated that about 125,000 children are educated at home in England alone.

The DfE said that the changes to the guidance seek to “promote a more positive relationship between local authorities and the home educators”. Responses to the consultation closed last month, and its results are due to be published in this spring.

The guidance is non-statutory, and does not change the legal duty on parents to provide a suitable education, nor the duty on councils to check that they are doing so, and take action if they are not. The DfE “recommends local authorities maintain voluntary registers of children who are not in school, including those electively home educated and missing education”. Previous guidance suggested only that they “may choose to operate voluntary schemes”. The change comes after the Government’s plans for a formal statutory register of children not in school were thwarted after the Schools Bill was dropped last year.

One important focus is that the DfE is proposing that a suitably educated child “should be literate in English and numerate appropriate to the child’s age, ability and aptitude and any SEN they may have”.

The draft guidance also clarifies that the DfE “does not consider the provision of solely religious education as meeting the relevant components to be considered a ‘suitable education’”.

As ever, the issues surrounding both absenteeism and home schooling should be political priorities, and are rightly hitting the headlines, given the dramatic post-pandemic changes to the numbers. If the law and the new guidance are really to change lives for the better, however, the courts, local authorities, and our educational institutions have to be properly resourced.


Howard Dellar is senior partner and head of the ecclesiastical and education department at Lee Bolton Monier-Williams.

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