Certainty over regular attendance

On 6 April 2017, the Supreme Court handed down its landmark judgment in Isle of Wight Council v Platt [2017] UKSC 28. This appeal arose from the local authority’s prosecution of a parent who had taken his child out of school to go on holiday during term time, despite the head teacher refusing permission.

The appeal turned on the meaning of ‘regularly’ in section 444 of the Education Act 1996. A parent whose child fails to attend school regularly is guilty of a summary offence, and can be prosecuted unless they pay a penalty notice. Proceedings had reached the Supreme Court because the magistrates’ court and Divisional Court had held that ‘regularly’ merely means ‘sufficiently often’, such that high attendance across the year would be a relevant consideration.

Lady Hale, giving the sole judgment, rejected this interpretation for the following reasons:

• ‘Sufficiently often’ was far too uncertain to found a criminal offence;

• Crucially, ‘sufficiently often’ was contrary to the parliamentary intent behind the Education Act 1944 (the ‘Rab Butler Act’), the source of the modern law on school attendance, which had introduced a stricter approach; and

• There were good policy reasons why the ‘sufficiently frequently’ interpretation was unsustainable. Besides clear statistical links between school attendance and educational achievement, unauthorised absences disrupt the education of the individual child and their peers. Worse still, if one pupil can be taken out whenever it suits the parent, then so can others, ‘thus increasing the disruptive effect exponentially’.

Lady Hale dealt with the Divisional Court’s concern that a single unauthorised absence could lead to criminal liability as follows:

• There are many examples where a minor or trivial breach of the law can lead to criminal liability;

• The possibility of harsh results had not been thought an objection under the pre-1944 law, before parliament had made the law on attendance stricter; and

• Under section 444(3)(a) and (9), a child is required to attend in accordance with the normal rules laid down by the school authorities for attendance but the school can make an exception in a particular case. In other words, unlike sickness or unavoidable cause, leave is not a defence but part of the definition of the offence. Viz, you attend when you are required to, not merely ‘sufficiently regularly’.

The intervention of the secretary of state for education was visible in the court’s reasoning (in respect of the legislative history and the policy arguments) and may have made the difference.

Local authorities and the Department for Education will be relieved and, as emphasised by Lady Hale, parents now know with greater certainty where they stand in relation to their responsibilities and can regulate their conduct accordingly; namely, there is no ‘failure to attend regularly’ if your child attends ‘in accordance with the rules prescribed by the school’.

Tom Tabori is a barrister at 39 Essex Chambers

@tomtabori www.39essex.com