Penalty notice code of conduct

The purpose of this local code of conduct is to ensure that penalty notices for school absence are issued in a manner that is fair and consistent across Trafford Council. 

The code sets out the arrangements for administering penalty notices in Trafford Council and must be adhered to by anyone issuing a penalty notice for school absence in this area. 

The code complies with relevant regulations and the Department for Education’s national framework for penalty notices as set out in the 'Working together to improve school attendance’ guidance.

Consultation

This code has been drawn up in consultation with the headteachers and governing bodies of state-funded schools.

Penalty notices may be issued to a parent as an alternative to prosecution for irregular school attendance under 444 of the Education Act 1996. They can only be issued in relation to pupils of compulsory school age in maintained schools, pupil referral units, academy schools, AP academies, and certain off-site places as set out in section 444A(1)(b).

The Education (Penalty Notices) (England) Regulations 2007 (and subsequent amendments) set out how penalty notices for school absence must be used.

A penalty notice can only be issued by an authorised officer of Trafford Council upon the request of the school.

The national framework for penalty notices is published in the statutory guidance ‘Working together to improve school attendance’. It provides further national guidance on the operation of penalty notice schemes for school absence in England.

A parent includes any person who is not a parent but who has parental responsibility for the child or who has care of the child, as set out in section 576 of the Education Act 1996. Penalty notices will usually be issued to the parent or parents with day-to-day responsibility for the pupil’s attendance or the parent or parents who have allowed the absence (regardless of which parent has applied for a leave of absence). 

Rationale

Research published by the Department for Education found pupils with higher attainment at KS2 and KS4 had lower levels of absence over the key stage compared to those with lower attainment.

For the most vulnerable pupils, regular attendance is also an important protective factor and often the best opportunity for needs to be identified and support provided.

Where difficulties arise with school attendance, professionals should take a ‘support first’ approach in line with the DfE’s ‘Working together to improve school attendance’ guidance, only progressing to legal enforcement as a last resort. The aim is that the need for legal enforcement is reduced by taking a supportive approach to tackle the barriers to attendance and intervening early before absence becomes entrenched.

The national framework for penalty notices is based on the principles that penalty notices should only be used in cases where:

  • Support is not appropriate (e.g. a term-time holiday) or where support has been provided and not engaged with or not worked, and
  • They are the most appropriate tool to change parental behaviour and improve attendance for that particular family.

When a penalty notice for absence may be appropriate

When a school becomes aware that the national threshold has been met, it must consider whether a penalty notice can and should be issued or not. The national threshold has been met when a pupil has been recorded as absent for 10 sessions (usually equivalent to 5 school days) within 10 school weeks, with one of, or a combination of the following codes:

  • Code G (the pupil is absent without leave for a holiday)
  • Code N (the circumstances of the pupil’s absence have not yet been established)
  • Code O absence without justifiable reason (none of the other rows of Table 3 in regulation 10(3) of the School Attendance (Pupil Registration) (England) Regulations 2024 applies)
  • Code U late arrival after the register has closed (the pupil attended after the taking of the register ended but before the end of the session, where no other code applies)

When a pupil has been excluded or suspended and is found in a public place:

Section 103(3) of the Education and Inspections Act 2006 renders a parent of a pupil who has been excluded from school liable to conviction for an offence where that pupil is found in a public place during school hours during the first five days of the exclusion or within any period specified within a notice of exclusion issued by the head teacher to the parent of that pupil in accordance with section 104 of that Act.

If, in an individual case, the local authority believes a penalty notice would be appropriate, they retain the discretion to issue one before the threshold is met. This might apply, for example, where parents are deliberately avoiding the national threshold by taking several term-time holidays below the threshold, or for repeated absence for birthdays or other family events.

If repeated penalty notices are being issued and they are not working to change behaviour, they are unlikely to be the most appropriate tool. The national framework for penalty notices sets out that a maximum of 2 penalty notices per child, per parent can be issued within a rolling 3-year period. If the national threshold is met for a third time (or subsequent times) within 3 years, the local authority will consider applying for an Education Supervision Order through the Family courts and may also consider a prosecution for irregular attendance under S444(1) or S444(1)A Education Act 1996.

For the escalation process, previous penalty notices include those not paid (including where prosecution was taken forward if the parent pleaded or was found guilty), but not those which were withdrawn.

Key considerations before the issue of a Penalty Notice for school absence

The following considerations will be made before issuing (or requesting that another authorised officer issue) a penalty notice to ensure consistency of approach:

In cases where support is not appropriate (for example, for holidays in term time), consider on a case-by-case basis:

  • Is a penalty notice the best available tool to improve attendance and change parental behaviour for this particular family, or would one of the other legal interventions be more appropriate?
  • Is issuing a penalty notice in this case appropriate after considering any obligations under the Equality Act 2010?
  • Is it in the public interest to issue a penalty notice in this case, given the local authority would be accepting responsibility for any resulting prosecution for the original offence in cases of non-payment? (For local authorities only)

In cases where support is appropriate, consider on a case-by-case basis:

  • Has sufficient support already been provided? Sufficient support by the school will usually include those strategies outlined in the Trafford graduated approach, such as the following examples:

a) School meetings with parents
b) Individual attendance plans
c) Attendance contract
d) Request for advice from Trafford School Attendance Team
e) Request for medical evidence
f) Involvement from the school nursing team
g) Emotionally based school non-attendance (EBSNA) toolkit
h) Family help assessment or involvement of Trafford Team Together
i) In-school pastoral and mentoring support and counselling
j) Home visits
k) Individual health care plan
l) Referral to external support services or alternative provision, such as the Medical Education Service
m) Referral to Trafford Virtual School for children with a social worker or who have previously had social worker involvement.
n) Referral for specialist assessment (e.g. SEND / CAMHS / EP) 

  • Is a penalty notice the best available tool to improve attendance and change parental behaviour for this particular family or would one of the other legal interventions be more appropriate?
  • Is issuing a penalty notice in this case appropriate after considering any obligations under the Equality Act 2010?
  • Is it in the public interest to issue a penalty notice in this case, given the local authority would be responsible for any resulting prosecution for the original offence in cases of non-payment? (For local authorities only)

If the answer to the above questions is ‘yes’, then a penalty notice (or a notice to improve in cases where support is appropriate) will usually be issued.

Where appropriate, the views of other agencies involved with the child will be taken into consideration.

Notice to improve

A notice to improve is a final opportunity for a parent to engage in support and improve attendance before a penalty notice is issued. If the national threshold has been met and support is appropriate, but offers of support have not been engaged with by the parent or have not worked, a notice to improve should usually be sent to give parents a final chance to engage in support. 

An authorised officer can choose not to use one in any case, including cases where support is appropriate, but they do not expect a notice to improve would have any impact on a parent’s behaviour (e.g. because the parent has already received one for a similar offence).

In cases other than leave of absence in term-time when the threshold has been met, the school will be responsible for issuing a notice to improve, setting out the recommended improvement period, which will be between 3 and 6 weeks, depending on each case.

Schools may use the Trafford Notice to Improve template. They must ensure that the notice includes:

  • Details of the pupil’s attendance record and details of the offences.
  • The benefits of regular attendance and parents’ duty under section 7 of the Education Act 1996.
  • Details of the support provided so far.
  • Opportunities for further support and the option to access previously provided support that was not engaged with.
  • A clear warning that a penalty notice may be issued or prosecution considered if attendance improvement is not secured within the improvement period.
  • A clear timeframe for the improvement period of between 3 and 6 weeks.
  • Details of what a sufficient improvement within that timeframe will look like.
  • The grounds on which a penalty notice may be issued before the end of the improvement period.

During the monitoring period, there must either be an acceptable increase in engagement with interventions available to the pupil and/or parent or a significant improvement in the pupil’s attendance with no unauthorised absences from school during this period.

Should there not be sufficient improvement and further unauthorised absences take place during this period, a Penalty Notice may be issued.

How schools can submit a Penalty Notice Request

A school should submit a request for a penalty notice no later than 6 school weeks following the last unauthorised absence for the period for which the penalty notice is to be considered.

All referrals for penalty notices must be submitted through the Trafford Education Portal.

All requests for penalty notices must be accompanied by a current certificate of registration signed by the headteacher or the headteacher’s designated officer.

Penalty notice requests for irregular attendance other than for leave of absence in term time must be submitted with a copy of the Notice to Improve, and the portal checklist setting out details of support strategies attempted must be completed.

The local authority will decide whether proportionate support has been provided, and whether that support has worked or not.

The local authority will inform the school about whether penalty notices are paid, withdrawn or prosecuted for non-payment. They will do this by sending a report at the request of the school.

Where pupils move between local authority areas, Trafford Council can be contacted by emailing pupil.absence@trafford.gov.uk to find out if penalty notices have been issued previously.

Where pupils attend school in Trafford but live in a different local authority, Trafford Council will, in cases other than unauthorised leave of absence in term time, contact the home local authority to enquire if the family are known to services in that area and to consider what level of support may be appropriate for the family.

Two Penalty Notice limit and escalation in cases of repeat offences

Only two penalty notices can be issued to the same parent in respect of the same child within a 3-year rolling period, and any second notice within that period is 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 three 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 three years, alternative action should be taken instead. This will often include considering prosecution, but may include other tools such as one of the other attendance legal interventions.

Making payments

If the penalty is not paid by the end of the 28 days, the local authority must decide either to prosecute for the original offence to which the notice applies or withdraw the notice.

Parent(s) or carers can only be prosecuted if 28 days have expired, and full payment has not been made. There is no right of appeal by parents against a penalty notice.

If the penalty is not paid in full by the end of the stated time period, the local authority must decide either to prosecute for the original offence to which the notice applies or withdraw the notice.

Payment must be made in full. The legislation does not allow for payment by instalments.

Withdrawing Penalty Notices

Trafford may only withdraw a penalty notice where:

  • It should not have been issued i.e. where it has been issued outside the terms of the local code of conduct or where no offence has been committed
  • It has been issued to the wrong person, or
  • it contains material errors