Education Act 1996, section 444

Offence: failure to secure regular attendance at school of registered pupil

Part VI School admissions, attendance and charges

(1)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.

[F895 (1A)If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails F896... to cause him to do so, he is guilty of an offence.F895]

[F897 (1B)It is a defence for a person charged with an offence under subsection (1A) to prove that he had a reasonable justification for his failure to cause the child to attend regularly at the school.F897]

(2)Subsections [F898(2A)F898] to (6) below apply in proceedings for an offence under this section in respect of a child who is not a boarder at the school at which he is a registered pupil.

[F899 (2A)The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school at any time if the parent proves that at that time the child was prevented from attending by reason of sickness or any unavoidable cause.F899]

(3)The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school—

(a)with leave, [F900 orF900]

F901(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)on any day exclusively set apart for religious observance by the religious body to which his parent belongs.

[F902 (3A)Subsections (3B) and (3D) apply where the child's home is in England.

(3B)The child shall not be taken to have failed to attend regularly at the school if the parent proves that—

(a)the [F6 local authorityF6] have a duty to make travel arrangements in relation to the child under section 508B(1) for the purpose of facilitating the child's attendance at the school and have failed to discharge that duty, or

(b)the [F6 local authorityF6] have a duty to make travel arrangements in relation to the child by virtue of subsection (2)(c) of section 508E (school travel schemes) for the purpose of facilitating the child's attendance at the school and have failed to discharge that duty.

(3C)For the purposes of subsection (3B)—

(a) the reference to “travel arrangements” in paragraph (a) has the same meaning as in section 508B, and

(b) the reference to “travel arrangements” in paragraph (b) has the same meaning as in paragraph 3 of Schedule 35C.

(3D)Where the school is an independent school which is not a qualifying school, the child shall not be taken to have failed to attend regularly at the school if the parent proves—

(a)that the school is not within walking distance of the child's home,

(b)that no suitable arrangements have been made by the [F6 local authorityF6] for boarding accommodation for him at or near the school, and

(c)that no suitable arrangements have been made by the [F6 local authorityF6] for enabling him to become a registered pupil at a qualifying school nearer to his home.

(3E) For the purposes of subsection (3D), “qualifying school” has the same meaning as it has for the purposes of Schedule 35B (meaning of “eligible child” for the purposes of section 508B).

(3F)Subsection (4) applies where the child's home is in Wales.F902]

[F903 (4)The child is not to be taken to have failed to attend regularly at the school if the parent proves that the local authority have failed to discharge—

(a)a duty to make transport arrangements in relation to the child under section 3 of the Learner Travel (Wales) Measure 2008, or

(b)a duty to make travel arrangements in relation to the child under section 4 of that Measure.F903]

(5) In [F904 subsection (3D) F904] “walking distance”—

(a)in relation to a child who is under the age of eight, means 3.218688 kilometres (two miles), and

(b)in relation to a child who has attained the age of eight, means 4.828032 kilometres (three miles),

in each case measured by the nearest available route.

(6)If it is proved that the child has no fixed abode, [F905subsections (3B), (3D) and (4)F905] shall not apply, but [F906it is a defence for the parent to proveF906] —

(a)that he is engaged in a trade or business of such a nature as to require him to travel from place to place,

(b)that the child has attended at a school as a registered pupil as regularly as the nature of that trade or business permits, and

(c)if the child has attained the age of six, that he has made at least 200 attendances during the period of 12 months ending with the date on which the proceedings were instituted.

(7)In proceedings for an offence under this section in respect of a child who is a boarder at the school at which he is a registered pupil, the child shall be taken to have failed to attend regularly at the school if he is absent from it without leave during any part of the school term [F907unless the parent proves that at that time the child wasF907] prevented from being present by reason of sickness or any unavoidable cause.

[F908 (7A)Where—

(a)a child of compulsory school age has been excluded for a fixed period on disciplinary grounds from a school in England which is—

(i)a maintained school,

(ii)a pupil referral unit,

[F909 (iii)an Academy school,

(iiia)an alternative provision Academy,F909]

(iv)a city technology college, or

(v)a city college for the technology of the arts,

(b)he remains for the time being a registered pupil at the school,

(c)the appropriate authority make arrangements for the provision of full-time education for him at the school during the period of exclusion, and

(d)notice in writing of the arrangements has been given to the child's parent,

the exclusion does not affect the application of subsections (1) to (7) to the child's attendance at the school on any day to which the arrangements relate.

(7B) In subsection (7A)(c) “the appropriate authority” means—

(a)in relation to a maintained school, the governing body of the school,

(b)in relation to a pupil referral unit, the [F6 local authorityF6] , and

(c)in relation to any school mentioned in subsection (7A)(a)(iii) to (v), the proprietor of the school.F908]

(8)A person guilty of an offence under [F910subsection (1)F910] is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

[F911 (8A)A person guilty of an offence under subsection (1A) is liable on summary conviction—

(a)to a fine not exceeding level 4 on the standard scale, or

(b)to imprisonment for a term not exceeding three months,

or both.

(8B)If, on the trial of an offence under subsection (1A), the court finds the defendant not guilty of that offence but is satisfied that he is guilty of an offence under subsection (1), the court may find him guilty of that offence.F911]

(9) In this section “leave”, in relation to a school, means leave granted by any person authorised to do so by the governing body or proprietor of the school.

Definitions used in section 444 14

child

“child” means a person who is not over compulsory school age;

Defined in s.579(1) · see it in the full Act
school

(1) In this Act (subject to subsections (1A) to (1C) ) “school” means an educational institution which is outside the further education sector and the wider higher education sector and is an institution for providing—

(a)primary education,

(b)secondary education, or

(c)both primary and secondary education,

Defined in s.4(1) · see it in the full Act
registered pupil

“registered pupil”, in relation to a school, means a person registered as a pupil at the school in the register kept under this section; and

Defined in s.434(5) · see it in the full Act
parent

(1) In this Act, unless the context otherwise requires, “parent”, in relation to a child or young person, includes any person—

(a)who is not a parent of his but who has parental responsibility for him, or

(b)who has care of him,

Defined in s.576(1) · see it in the full Act
boarder

“boarder” includes a pupil who boards during the week but not at weekends;

Defined in s.579(1) · see it in the full Act
local authority

“local authority” means—

(a)

a local authority in England;

(b)

a local authority in Wales;

Defined in s.579(1) · see it in the full Act
independent school

(1) In this Act “independent school” means any school at which full-time education is provided for—

(a)five or more pupils of compulsory school age, or

(b)at least one pupil of that age for whom an EHC plan is maintained or for whom a statement is maintained under section 324 or an individual development plan is maintained , or who is looked after by a local authority (within the meaning of section 22 of the Children Act 1989 or section 74 of the Social Services and Well-being (Wales) Act 2014 ),

Defined in s.463(1) · see it in the full Act
Qualifying school

(2) “Qualifying school” in relation to a child means—

(a) a community, foundation or voluntary school,

(b) a community or foundation special school,

(c) a school approved under section 342 (non-maintained special schools),

(d) a pupil referral unit,

(e) a maintained nursery school, or

(f) a city technology college, a city college for the technology of the arts , an Academy school or an alternative provision Academy .

Defined in Sch.35B para.15(2) · see it in the full Act
Walking distance

(5) “Walking distance” has the meaning given by section 444(5).

Defined in Sch.35B para.15(5) · see it in the full Act
maintained school

“maintained school” means any community, foundation or voluntary school or any community or foundation special school not established in a hospital; and

Defined in s.437(8) · see it in the full Act
pupil

(3) The definition of “pupil” in subsections (1) and (1A) also apply (unless the context otherwise requires) for the purposes of any instrument made or having effect as if made under the Education Acts.

Defined in s.3(3) · see it in the full Act

(1) In this Act “pupil” means a person for whom education is being provided at a school, other than—

(a)a person who has attained the age of 19 for whom further education is being provided, or

(b)a person for whom part-time education suitable to the requirements of persons of any age over compulsory school age is being provided.

Defined in s.3(1) · see it in the full Act
Academy school

“Academy school”, “Academy order” and “alternative provision Academy” have the meanings have the meanings given by sections 1A, 1B and 1C respectively of that Act;

Defined in s.579(1) · see it in the full Act
alternative provision Academy

“Academy school”, “Academy order” and “alternative provision Academy” have the meanings have the meanings given by sections 1A, 1B and 1C respectively of that Act;

Defined in s.579(1) · see it in the full Act
proprietor

“proprietor”, in relation to a school or a 16 to 19 Academy , means the person or body of persons responsible for the management of the school or Academy (so that, in relation to a community, foundation or voluntary or community or foundation special school or a maintained nursery school, , or a maintained nursery school, it means the governing body);

Defined in s.579(1) · see it in the full Act

Cases considering section 444 25

Isle of Wight Council v Platt

[2017] UKSC 28 · 6 April 2017Limits

“Fails to attend regularly” means failure to attend in accordance with the rules prescribed by the school. The subsection creates a strict-liability offence and does not require an assessment of whether attendance was sufficiently frequent. (see paras [44]–[48]) The subsection creates the more serious offence requiring knowledge that the child is failing to attend regularly and a failure to cause attendance. Unlike section 444(1), it is not a strict-liability offence. (see paras [20]; [44]) The subsection provides a reasonable-justification defence to the more serious offence under section 444(1A). (see paras [19]–[20]) Absence does not constitute failure to attend regularly where the parent proves that sickness or another unavoidable cause prevented attendance. This is one of the limited statutory circumstances excusing absence. (see paras [19]–[20]) An absence with authorised leave is excluded from failure to attend regularly. Leave forms part of the definition of the offence rather than operating as a defence. (see para [46]) The express exclusion for absence on a day set apart exclusively for religious observance indicates that an otherwise unauthorised single day’s absence can constitute failure to attend regularly. (see paras [35]; [46]) For a child of no fixed abode, attendance as regularly as an itinerant trade permits means attendance as often as possible. The specified minimum also shows that Parliament states expressly when it intends a frequency threshold. (see para [36]) A boarder fails to attend regularly if absent without leave during any part of the term, subject to sickness or unavoidable cause. This supports the same full-attendance expectation for day pupils. (see para [37]) The treatment of attendance by excluded children for whom alternative education is arranged proceeds on the basis that absences are counted by the day. The provision offers limited contextual support but does not determine the meaning of the earlier language. (see para [38]) The subsection identifies leave as leave granted by a person authorised by the school’s governing body or proprietor. Together with section 444(3)(a), it makes authorised leave part of the offence’s definition. (see para [46])

Drexler, R (On the Application Of) v Leicestershire County Council

[2020] EWCA Civ 502 · 7 April 2020

The potential criminal liability of a parent for a compulsory-school-age child’s non-attendance was a material feature supporting the statutory distinction from the 16-to-18 group. (see paras [19]; [81]; [87]) The availability of a defence where a local authority has failed to provide required school travel arrangements reinforced the significance of the compulsory-school-age transport regime. (see paras [19]; [81]; [87])

G, R (on the application of) v Westminster City Council

[2004] EWCA Civ 45 · 30 January 2004Interprets

The parental offences for failure to secure regular attendance form part of the statutory response to avoidable absence. Their existence supports using attendance powers where suitable schooling is reasonably practicable. (see paras [40]; [44]–[46]) The exceptions for sickness or another unavoidable cause were considered as part of the relationship between parental attendance obligations and the authority’s section 19 duty. The statutory schemes do not dovetail completely because a registered school may be educationally unsuitable. (see paras [29]–[31]; [40]–[41])

5 more judgments, and what each says about section 444, are in the case-law panel in the full Act.

Amendments and notes

19 notes from legislation.gov.uk

Amendments

  1. F895S. 444(1A) inserted (1.3.2001) by 2000 c. 43, s. 72(1)(a)(2); S.I. 2001/562, art. 2
  2. F896Words in s. 444(1A) repealed (8.11.2006) by Education and Inspections Act 2006 (c. 40), ss. 109(1), 188(1), Sch. 18 Pt. 1 (with s. 109(11))
  3. F897S. 444(1B) inserted (8.11.2006) by Education and Inspections Act 2006 (c. 40), ss. 109(2), 188(1) (with s. 109(11))
  4. F898Word in s. 444(2) substituted (8.11.2006) by Education and Inspections Act 2006 (c. 40), ss. 109(3), 188(1) (with s. 109(11))
  5. F899S. 444(2A) inserted (8.11.2006) by Education and Inspections Act 2006 (c. 40), ss. 109(4), 188(1) (with s. 109(11))
  6. F900Word in s. 444(3)(a) inserted (8.11.2006) by Education and Inspections Act 2006 (c. 40), ss. 109(5)(a), 188(1) (with s. 109(11))
  7. F901S. 444(3)(b) repealed (8.11.2006) by Education and Inspections Act 2006 (c. 40), ss. 109(5)(b), 188(1), Sch. 18 Pt. 1 (with s. 109(11))
  8. F902S. 444(3A)-(3F) inserted (1.9.2007) by Education and Inspections Act 2006 (c. 40), ss. 82(2), 188(3) (with s. 82(5)); S.I. 2007/1801, art. 4(d)
  9. F6Words in Act substituted (5.5.2010) by The Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), Sch. 2 para. 7(2) (with Sch. 2 para. 7(4)(5))
  10. F903S. 444(4) substituted (1.9.2009) by Learner Travel (Wales) Measure 2008 (nawm 2), ss. 20(2), 28(2); S.I. 2009/371, art. 2(2), Sch. Pt. 2
  11. F904Words in s. 444(5) substituted and repealed (1.9.2009) by Learner Travel (Wales) Measure 2008 (nawm 2), ss. 20(3), 28(2) and Sch. 2; S.I. 2009/371, art. 2(2), Sch. Pt. 2
  12. F905Words in s. 444(6) substituted (1.9.2007) by Education and Inspections Act 2006 (c. 40), ss. 82(4), 188(3) (with s. 82(5)); S.I. 2007/1801, art. 4(d)
  13. F906Words in s. 444(6) substituted (8.11.2006) by Education and Inspections Act 2006 (c. 40), ss. 109(6), 188(1) (with s. 109(11))
  14. F907Words in s. 444(7) substituted (8.11.2006) by Education and Inspections Act 2006 (c. 40), ss. 109(7), 188(1) (with s. 109(11))
  15. F908S. 444(7A)(7B) inserted (1.9.2007) by Education and Inspections Act 2006 (c. 40), ss. 109(8), 188(3) (with s. 109(11)); S.I. 2007/1801, art. 4(i)
  16. F909S. 444(7A)(iii)(iiia) substituted for s. 444(7A)(iii) (1.4.2012) by Education Act 2011 (c. 21), s. 82(3), Sch. 13 para. 9(7); S.I. 2012/924, art. 2
  17. F910Words in s. 444(8) substituted (1.3.2001) by 2000 c. 43, s. 72(1)(b)(2); S.I. 2001/562, art. 2
  18. F911S. 444(8A)(8B) inserted (1.3.2001) by 2000 c. 43, s. 72(1)(c)(2); S.I. 2001/562, art. 2

Modifications

  1. C140S. 444(1)(1A): power to disapply conferred (temp.) (25.3.2020) by Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 17 para. 5 (with ss. 88-90)