How regular is regular? The final word in Platt v Isle of Wight Council [2017] UKSC 28

The final round in the infamous case of Platt v Isle of Wight Council has now been decided. The result? It’s bad news for parents hoping for a cheap term-time hop to Disney and good news for local authorities and Head Teachers everywhere.

The Facts

This is the case in which a single father opted to take his 6 year old daughter out of school during term-time for a 10 day holiday (missing 7 days of school) after her Head Teacher had explicitly rejected an absence request. The Head Teacher sent a Fixed Penalty Notice Referral Form to the Council’s Education Welfare Officer who, after considering the Council’s Code of Conduct, issued a Fixed Penalty Notice for £60. This then jumped to £120 when the father refused to pay.

Regulation 7(1A) of the Education (Pupil Registration)(England) Regulations (SI 2006/1751)(as amended by SI 2013/756) provides that leave of absence for any purpose may only be given where there are “exceptional circumstances”. The Isle of Wight’s Code of Conduct states that the discretion as to whether a request for absence is exceptional is wholly down to the Head Teacher. Each request will be judged on a case-by-case basis but “it is usual that Head Teachers will be sparing in their use of this discretion.”

Criminal proceedings were issued against the father for an offence under Section 444(1) of the Education Act 1996. This stipulates that “If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.” The father pleaded not guilty on the basis of his daughter’s excellent attendance record generally throughout the school year. Her unauthorised holiday absence did not mean that she failed to attend school regularly.

Magistrates Court Trial

At the father’s criminal trial, the Magistrates ruled that he had no case to answer. They found that an essential element of the prosecution case was missing, ie: that his child had failed to attend school regularly. This was supported by the fact that the register showed her attendance to be 92.3% (prior to the unauthorised holiday it was 95% and even taking account of that absence, it was still 90.3%). The local authority itself had indicated that it considered satisfactory attendance to fall within the 90-95% range.

It is clear that in reaching their decision, the Magistrates felt entitled to take account of the child’s overall school attendance record, rather than her record of attendance during the specific absence for which her father was being prosecuted. The Council appealed by way of case stated, and the Magistrates asked the High Court to consider whether they had erred in adopting the approach that they had.

The High Court

At the High Court, Lloyd Jones L.J. found that the Magistrates’ approach had been correct. Praying in aid the earlier case of London Borough of Bromley v C [2006] EWHC 1110 (Admin), he concluded that the question of regular attendance is “a matter of fact and degree in each case.” Thus, absence on unauthorised holiday would have to be considered in all the circumstances “including attendance over a wider period than the period of absence.” He did not feel that the local authority could criminalise every unauthorised holiday simply by alleging no regular attendance in a period limited to the holiday absence itself. “If that were carried to its logical conclusion, it would be open to the authority to bring a prosecution under section 444 (1) in respect of an unauthorised absence from school without lawful excuse of one day by limiting the period of irregular attendance alleged in the information to that one day.”

Ultimately, it was felt that the issue of absence/regular attendance needed to be considered in a wide context including evidence of prior school attendance.

Supreme Court

The approach taken by the High Court and the Magistrates was roundly criticised and then rejected by Lady Hale in the Supreme Court.

She looked at the history of legislation relating to school attendance, identifying a change within the Education Act 1944 (upon which the 1996 Act is based). Where, prior to that, attendance was mandatory in the absence of reasonable excuse (where any absence could lead to prosecution), from 1944 onwards, the requirement was to attend school regularly save for a closed list of specified reasons such as leave given, illness/other unavoidable cause or religious observance.

In considering the meaning of the word “regularly” within Section 444(1) of the Education Act 1996 (“If a child…..fails to attend regularly….”), Lady Hale gave three possible definitions:-

1. “At regular intervals” – ie: akin to somebody regularly attending church on a Sunday.
2. “Sufficiently regularly” – ie: the meaning ascribed by the Magistrates at first instance and on appeal to the High Court, that is, taking account of the pupil’s attendance at school generally over a prolonged period of time.
3. “Regularly in accordance with the rules.”

Lady Hale quickly discounted the first of these definitions as applicable to school attendance. Attending school at regular intervals (ie: weekly) would plainly be insufficient.

She also dismissed the “sufficiently regularly” definition for a total of 10 reasons, most of which were concerned with the wording and interpretation of Section 444 itself, in particular, a comparison of the requirements and demands of attendance that that legislation places upon children of no fixed abode, children at boarding schools and excluded children.

However, four important, stand-alone reasons were also given.

The first is that the 1944 Education Act (and its 1996 offspring) increased the scope and character of compulsory state education. For the first time, parents were required to cause their children to receive efficient, full time, education. The compulsory school age was raised and a wider range of education opportunities provided free of charge. In those circumstances, it is implausible that attendance requirements were meant to be relaxed by Parliament (note also the replacement of the open-ended defence of “reasonable excuse” for absence with a closed list of statutory excuses).

Second, the “sufficiently regularly” attendance definition is too uncertain to found a criminal offence as it fails to set out how much attendance is enough, and over what period attendance will be assessed. “Does one take into account how good or bad the reasons for any previous absences were? If attendance over the whole school year, or over the period before the information is laid, is taken into account, how can the parent know whether taking the child out of school on any particular day will be an offence?”

Third, public policy. Lady Hale noted the link between school attendance and educational achievement, the disruptive effect of unauthorised absence, both upon the absentee (missed work) and upon others (teacher, rest of class). Ultimately, the absence of one pupil for whatever reason could lead to other pupils taking off different periods, leading to a substantial overall disruptive impact on the class.

Probably the most important factor for rejecting the “sufficiently regularly” attendance definition is the consideration that “Parliament is unlikely to have found it acceptable that parents could take their children out of school in blatant disregard of the school rules, either without having asked for permission at all or, having asked for it, been refused. This is not an approach to rule-keeping which any educational system can be expected to find acceptable. It is a slap in the face to those obedient parents who do keep the rules, whatever the cost or inconvenience to themselves.”

Having gone through this process of reasoning, Lady Hale concluded that the correct definition of “regularly” in relation to school attendance is “In accordance with the rules.” Lloyd Jones L.J’s fear that a single missed day of school could lead to criminal liability could easily be assuaged by a sensible prosecution policy. This definition provides certainty and enables parents hoping to take their children out of school at term-time to do so in the full knowledge of the risks that they run should leave not be granted.

Mr. Platt’s case will now be remitted to the Magistrates Court with a direction to proceed as if his submission of no case to answer had failed.

Discussion

The issue now seems clear. Unauthorised school absence (either because leave has not been sought, or because it has been sought and refused) is unacceptable and could lead to the imposition of a Penalty Notice and eventually, if unpaid, to criminal prosecution. A child’s prior record of attendance is irrelevant to whether he/she “fails to attend regularly” due to a period of unauthorised absence.

Whether a penalty notice is in fact issued will depend upon the discretion of each Head Teacher and how closely they will abide by their local authority’s Code of Conduct. There is no reason to think that the vast majority of local authorities will have Codes of Conduct that will depart very far in their wording from that of the Isle of Wight. That said, there is a vast difference between seeking permission to take a day off school to attend an educational destination and a request for a day off to benefit from a cheap holiday flight. One only hopes that common sense will prevail.

The Supreme Court has taken the view that is has, no doubt partially because of the way that the educational legislation has changed since 1944, but mainly because of public policy implications. Allowing children time off school during term-time damages their educational prospects, harms their fellow pupils and encourages rule-breaking much more generally. Although this is unhelpful to those parents wishing to take advantage of cheap, term-time holiday deals and the like, it is probably the only sensible way of ensuring widespread and ongoing compliance with term dates.

To read more about Howard’s practice, please click here.

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