Legal Interventions

Introduction

The national framework has been developed by the Department for Education with the aim to:

• Make penalty notices more effective by ensuring they are only used in cases where they are the most appropriate tool to change parental behaviour and improve attendance.
• Prioritise the Support First Approach by expecting support to be used in cases where it is appropriate and using penalty notices in cases where support is not appropriate (e.g. a term time holiday), has not worked or has not been engaged with.
• Improve consistency in the use of penalty notices across England by introducing a new national threshold at which they are considered.
• Improve the deterrent effect of a penalty notice by increasing the amount and introducing a new national limit of two penalty notices within a three-year period to break cycles of repeat offending.

The Local Authority does not advocate the use of penalty notices for entrenched patterns of poor attendance and will consult with a school when it's suitability as a legal intervention is uncertain. Where there are entrenched patterns of poor attendance, school should follow the Support First Approach.

National Threshold

The national threshold is 10 sessions of unauthorised absence in a rolling period of 10 school weeks.

Key points of the national threshold:

• 10 sessions are usually equivalent to 5 school days.
• A school week means any week in which there is at least one school session.
• The threshold can be met through a combination of any unauthorised absence (O, U and G codes).
• The sessions do not have to be consecutive.
• The period of 10 school weeks can also span different terms or school years.

A referral for legal intervention will not be considered by the Attendance Team unless the national threshold has been met of at least ten sessions of unauthorised absence within a period of ten school weeks. Where the national threshold has been met and a referral made, the Attendance Team will consider the case and decide which legal intervention is the most appropriate to change parental behaviour.

Schools must always consider whether a penalty notice should be issued when the national framework criteria applies, considering whether support is or isn't appropriate. If support is appropriate, schools are expected to implement or continue with support without referring for a penalty notice by following the support first approach.

If the school believe that support isn't appropriate i.e. an unauthorised holiday during term time, a penalty notice is the best available tool to improve attendance and change parental behaviour, and they have met any obligations under the Equality Act 2010, then a referral for a penalty notice can be made.

Notice to Improve

Please see our Notice to improve page for more information.

You can find the template Notice to Improve in Attendance forms and templates within the 'Legal intervention' section.

Two penalty notice limit

A penalty notice is an opportunity for a parent to discharge themselves from the duty of having committed an offence. It is an alternative to prosecution which is intended to improve attendance and change the parent's behaviour. Where penalty notices are repeatedly being issued to the same parent, they are not working to change behaviour so should no longer be considered the most appropriate tool.

In line with this, a 2 penalty notice limit has been introduced whereby only 2 penalty notices can be issued per parent, per child within a 3 year rolling period.

The second notice within that period will also be charged at a higher rate:

• The first penalty notice issued to a parent in respect of a particular pupil will be charged at £160 if paid within 28 days. This will be reduced to £80 if paid within 21 days.
• A second penalty notice issued to the same parent in respect of the same pupil is charged at a flat rate of £160 if paid within 28 days.
• A third penalty notice cannot be issued to the same parent in respect of the same child within 3 years of the date of issue of the first. In a case where the national threshold is met for a third time (or subsequent times) within those 3 years, alternative action should be taken instead.

In Norfolk, where a child's attendance has met the national threshold for a third time within 3 years and the parent(s) have already been issued with 2 penalty notices within that period, consideration will be given to prosecution under section 444 Education Act 1996.

Code of Conduct

Local Authorities and schools are required to adhere to legislation and a local code of conduct when carrying out their duties surrounding penalty notices and making decisions to issue penalty notices under section 444 of Education Act 1996. Details of how the penalty notice scheme must operate are set out in the Education (Penalty Notices) (England) Regulations 2007.

The Attendance Team are responsible for Norfolk's Local Authority Code of Conduct and are responsible for the arrangements in place for administering penalty notices. We continually strive to ensure a consistent, fair, and transparent application of the policy regarding penalty notices throughout the County.

Norfolk's Local Code of Conduct can be viewed NCC Code of Conduct for issuing Fixed Penalties regarding School Attendance Aug 2024 (Word doc) [146KB].

The three-year rolling period and applicable escalation of fines begins from the date on which the first penalty notice is issued. For example, if the first penalty notice is issued on 18 September 2024, the three year period would end on 17 September 2027. A second penalty notice issued during that period would be issued at the higher rate. A third or subsequent referral during that period would result in escalation, which is likely to be prosecution through the Magistrates Court.

The national framework also gives the Local Authority the discretion to issue a penalty notice before the threshold is met. This might apply for example, where parents have taken several term time holidays below the national threshold. If school is aware of such a scenario, they should contact the Attendance Team to discuss the case. The Local Authority also retains the discretion to consider moving straight to prosecution through the Magistrates Court where appropriate.

Responsibilities of schools

All schools wishing to issue penalty notices under the national framework and Norfolk's Local Code of Conduct must:

• evidence that literature provided to parents relating to attendance is accessible and includes clear information about when parents may be issued with a penalty notice for any unauthorised absence, including unauthorised term-time holidays.
• issue all parents with the Penalty Notice Guidance Letter informing them of the national framework; this should be issued annually at the start of each academic year and dated accordingly or, if a child joins mid-year, they need to receive the guidance letter at the time of induction. The template letter that schools must issue can be accessed in Attendance forms and templates.

The responsibility for classifying an absence lies with the school; the Attendance Team will issue a penalty notice based on the school's classification and other evidence supplied with the referral.

Cross border checks

The Attendance Team are also responsible, where a pupil has moved school or local authority area, for checking if any penalty notices have previously been issued to the parent in respect of the child. Where the child remains in Norfolk, we will complete these checks internally. If the child has moved to Norfolk in the last 3 years and the previous local authority area is known, the Attendance Team will contact the local authority to check if any penalty notices have been issued to that parent for that pupil in the previous 3 years.

The Attendance Team's email address for completing such checks is crossborder.penaltynotice@norfolk.gov.uk.