Isle of Wight Council v Platt

For the purposes of section 444(1) of the Education Act 1996, a child attends school “regularly” by attending in accordance with the school’s attendance rules. The expression does not mean attendance at regular intervals or attendance sufficiently frequently when assessed as a matter of fact and degree.

An unauthorised absence may therefore constitute a failure to attend regularly even if the child’s overall attendance record is otherwise satisfactory. The section creates an offence of strict liability, subject to the statutory circumstances in which absence is disregarded. Absence with authorised leave forms part of the definition of the offence rather than operating as a defence.

The respondent’s daughter was a registered pupil at an Isle of Wight primary school. After the head teacher refused permission for a term-time holiday, the respondent nevertheless removed her from school for seven school days. He declined to pay the resulting penalty notice and was prosecuted under section 444(1) of the Education Act 1996.

The magistrates held that there was no case to answer because the child’s attendance remained above 90% when assessed beyond the charged period. On the Council’s appeal by case stated, the Divisional Court, in [2016] EWHC 1283 (Admin), held that attendance outside the charged period was relevant.

The central issue in the Supreme Court was whether “fails to attend regularly” means failure to attend sufficiently frequently, assessed over a wider period, or failure to attend in accordance with the school’s rules.

1. Appeal allowed unanimously. Lady Hale, with whom Lord Neuberger, Lord Mance, Lord Reed and Lord Hughes agreed, held that “regularly” in section 444(1) of the Education Act 1996 means in accordance with the attendance rules prescribed by the school. It does not mean attendance at regular intervals or attendance sufficiently frequently. A declaration was made accordingly.

2. The statutory history showed that, before 1944, a parent could incur liability for a single missed day or half-day. The introduction of “fails to attend regularly” in 1944 did not relax that obligation. Compulsory full-time education, the replacement of the open-ended reasonable-excuse defence by specified statutory circumstances, and the provisions concerning religious observance, itinerant families and boarders all supported attendance whenever the rules required it.

3. Construing regularity as sufficient frequency would make criminal liability impermissibly uncertain. Neither the relevant period nor an acceptable percentage could be identified. A parent could not know on a particular day whether an unauthorised absence would constitute an offence. By contrast, compliance with prescribed attendance rules supplies a clear standard. Concerns about trivial breaches are properly addressed through sensible prosecution policies, penalty notices and, where appropriate, discharge by the court.

4. Section 444(1) creates an offence of strict liability. Section 444(1A) creates the more serious offence requiring parental knowledge and an unjustified failure to secure attendance. Under sections 444(3)(a) and 444(9), authorised leave is part of the definition of the section 444 offence, rather than a defence. The remaining statutory provisions identify the limited circumstances in which absence is not treated as a failure to attend regularly.

5. To the extent that Crump v Gilmore (1969) 68 LGR 56 and London Borough of Bromley v C [2006] EWHC 1110 (Admin) adopted a sufficient-frequency interpretation, they were not to be followed.

6. The respondent had a case to answer. On the agreed facts the penalty notice was properly issued and, because it remained unpaid, he should have been convicted unless he established a statutory exception. The proceedings were returned to the magistrates with a direction to continue as though the submission of no case to answer had been rejected.

1. United Kingdom Supreme Court: Allowed the Council’s appeal unanimously, declared that “regularly” in section 444(1) of the Education Act 1996 means in accordance with the school’s rules, and returned the case to the magistrates to proceed.

2. Divisional Court of the Queen’s Bench Division: In [2016] EWHC 1283 (Admin), held that the magistrates had not erred by considering attendance outside the dates specified in the summons.

3. Isle of Wight Magistrates’ Court: Held that there was no case to answer because the child’s attendance was 90.3% after the unauthorised holiday and had therefore remained regular.