Penalty Notice Code of Conduct

This code of conduct sets out the arrangements for administering penalty notices in Islington and must be adhered to by anyone issuing a penalty notice for unauthorised school absence. The code complies with relevant regulations and the Department for Education’s (DfE) National Framework for penalty notices as set out in their newly published statutory guidance, ‘Working Together to Improve School Attendance’ (August 2024).

Provisions set out within this code of conduct apply to unauthorised absences recorded by schools from the start of the 2024/25 academic year. Absences recorded prior to 19 August 2024 may be subject to the provisions set out within the previous, locally agreed code of conduct. 

Consultation

1. This code of conduct has been drawn up in consultation with Islington headteachers and governing bodies of state funded schools and the Islington police.

Legal basis

2. Penalty notices may be issued to a parent as an alternative to prosecution for irregular school attendance under s444 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, Alternative Provision (AP) and certain off-site places, as set out in s444ZA of the Education Act 1996. For penalty notices relating to suspended or excluded pupils, refer to paragraph 8 below for the legal basis under which these penalty notices are issued.

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

4. A penalty notice can only be issued by an authorised officer:

• A headteacher or a deputy or assistant head authorised by them.
• An authorised local authority officer.
• A police officer.

Under the community safety accreditation scheme (CSAS), authority may be granted by the police to additional approved personnel who are involved in a community safety or traffic management role, enabling penalty notices to be issued, in line with the National Framework for penalty notices and any locally agreed practices as set out within this code of conduct.

5. The National Framework for penalty notices is published in ‘Working Together to Improve School Attendance’ (pages 56-61). It provides further national guidance on the operation of penalty notice schemes for school absence in England.

6. Evidence suggests that absence from school can lead to increased involvement in anti-social behaviour and youth crime. The education-related provisions of the Anti-Social Behaviour Act 2023 apply to any parent/s who falls within the definition set out in s576 of the Education Act 1996. This defines ‘parent’ as:

• All natural parent/s, whether they are married or not.
• Any person who, although they are not the natural parent/s, has care of a child or young person. Having care of a child or young person means that a person with whom the child lives and who looks after the child, irrespective of what their relationship is with the child, is a parent in education law.

Under this code of conduct, a penalty notice can be issued to each parent/s believed to be liable for the offence or offences.

Suspended or excluded pupils

7. When a child is suspended/excluded from school, the parent/s will be responsible for ensuring that their child is not found in a public place during normal school hours on the first 5 days of each fixed period suspension or permanent exclusion (see s103 of the Education and Inspections Act 2006).

8. When requesting a penalty notice in respect of a suspended/excluded pupil, schools must be able to evidence that the following criteria have been met/considered:

• The suspending/excluding school must have notified the parent/s informing them of their duty and warning that a penalty notice could be issued.
• Where there is more than one person liable for an offence, a separate penalty notice may be issued to each person.
• Where a pupil is present in a public place during the first 5 days of a fixed period suspension, Islington Council would issue a penalty notice if the school is in their local authority area.
• Where the child has been permanently excluded, the responsibility for issuing a penalty notice would fall to the local authority in which the child resides.

9. Penalty notices relating to suspended/excluded pupils are not included in the National Framework and therefore not subject to the same considerations about support being provided or count towards the limit as part of the escalation process in the case of repeat offences for non-attendance. These penalty notices are charged at £120, reduced to £60 if paid within 21 days.

Rationale

10. Research published by the DfE in May 2022 found:

• Pupils with higher attainment at key stages 2 and 4 had lower levels of absence over the key stage compared to those with lower attainment.
• Pupils who did not achieve the expected standard in reading, writing and maths in 2019 had an overall absence rate of 4.7% over the key stage, compared with 3.5% among pupils who achieved the expected standard and 2.7% among those who achieved a higher standard.
• Pupils who did not achieve grades 4 to 9 in English and maths GCSEs in 2019 had an overall absence rate of 8.8% over the key stage, compared with 5.2% among pupils who achieved a grade 4 and 3.7% among pupils who achieved grades 5 to 9 in both English and maths.

11. For pupils registered at one of the settings referenced in paragraph 2 above, regular attendance is a legal requirement and s444(1) and 444(1A) of the Education Act 1996 and s36 of the Children Act 1989 already exist to enforce attendance through the courts in appropriate circumstances. The legal responsibility for compliance rests with the parent/s and courts have the powers to fine, imprison or impose various orders.

12. 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.

13. The National Framework for penalty notices is based on the principles that penalty notices will only be used in cases where:

• Support has been provided and not engaged with or not worked.
• Support is not appropriate (e.g. a term time holiday).
• A penalty notice is the most appropriate tool to change parental behaviour and improve attendance.

14. Where difficulties arise with school attendance, professionals should take a ‘support first’ approach in line with the ‘Working Together to Improve School Attendance’ guidance, only resorting to legal enforcement when absolutely necessary. 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.

Who will receive a penalty notice?

15. Penalty notices will be issued to the parent/s with day-to-day responsibility for the pupil or the parent/s who have permitted the absence, regardless of which parent has applied for the leave of absence.

16. A penalty notice will be issued to each parent of each child:

• whose attendance is poor
• that was taken on an unauthorised term time holiday or term time leave
• who in the case of exclusion, is present in a public place during the first 5 days.

17. Penalty notices will be issued to the parent/s of children registered at Islington schools or academies, irrespective of their registered home address. This also means that follow-up prosecutions, where parents fail to pay their penalty notice fine or to improve their child’s attendance may extend to families residing outside of Islington. Islington Council will notify the ‘home’ local authority of all pupils residing outside of Islington, if a prosecution is undertaken because of irregular attendance at an Islington school. Penalty notices will not be issued by Islington Council to a parent/s whose child is not on the roll of an Islington school.

Payment of penalty notice fines

18. Arrangements for payment will be detailed within the penalty notice.

• The first penalty notice issued to the parent/s for a child will be charged at £80 if paid within 21 days, rising to £160 if paid between days 22 and 28.
• Where it is deemed appropriate to issue a second penalty notice to the same parent/s for the same pupil within 3 years of the first offence, the second notice is charged at a flat rate of £160 and is payable within 28 days. There is no reduced sum available in this instance.
• Part payments or payment plans are not acceptable, and fines must be paid in full within 21 and/or 28 days, at the rate specified within the penalty notice.
• Payment after the deadline may be accepted in exceptional circumstances. In this situation, the higher amount of £160 is usually payable and must be paid immediately and in full.
• When paying a penalty notice fine, the parent/s is essentially agreeing to an out of court settlement in respect of the unauthorised absences to which the notice refers. Payment in full against the penalty notice discharges the parent’s legal responsibility for the period of unauthorised absence outlined and the parent/s cannot be subsequently prosecuted for that same period.
• Any revenues collected through the system must be ring-fenced to administer the penalty notice system and prosecution for the original offence in cases of non-payment. If a surplus remains after the system has been administered and any non-payers have been prosecuted, this can be spent on the local authority’s attendance support offer.

19. The local authority will inform the school about whether penalty notices are:

• Paid
• Withdrawn
• Have proceeded to prosecution due to non-payment.

20. Where pupils move between local authority areas, Islington Council can be contacted on pupilservices@islington.gov.uk to find out if penalty notices have been issued previously, so that appropriate escalation of fines may be applied in line with the National Framework.

Circumstances where a penalty notice for absence may be issued

21. When the national threshold has been met a school must consider whether a penalty notice can and should be issued. Schools should not have a blanket/one-size-fits-all approach to issuing or not issuing penalty notices and should make judgements on each individual case to ensure fairness and consistency.

22. The national threshold has been met when a registered pupil has been recorded with: 10 sessions (five days) of unauthorised absent in a rolling period of 10-school weeks. A school week means any week in which there is at least one school session.

Any combination of the following unauthorised absence codes may be used:

• G – Unauthorised leave/holiday taken during term time. The school has not granted a leave of absence, and the pupil is absent for the purpose of a holiday.
• N – The circumstances of the pupil's absence has not yet been established.
• O – Where no reason for absence is established or the school is not satisfied that the reason given is one that would be recorded using one of the codes statistically classified as authorised.
• U – Arriving late after registers have closed but before the end of the session. 

The following are examples that demonstrate how the threshold of 10 sessions within a 10-school week period might be triggered, although this is not an exhaustive list: 

• 4 sessions (2 days) plus 6 sessions of holiday taken in term time, arriving late after the register closes, all within 10 school weeks
• 10 consecutive sessions (5 days) of holiday absence (G coded)
• 6 sessions (3 days) of unauthorised absence taken in one week, and 1 further session of unauthorised absence, per week, for the next 4 weeks
• The period of 10 school weeks can also span different terms or school years. For example, 2 sessions of unauthorised absence in the summer term and a further 8 sessions recorded within the following autumn term.
• 5 separate days of absence (10 sessions) taken over several weeks. For example, a pupil who fails to attend school on Fridays on 5 separate occasions within a 10-school week period.

23. If repeated penalty notices are being issued and they are not working to change behaviour and improve attendance, 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.

24. The National Framework also sets out the escalation process which applies to such penalty notices. If the national threshold is met for a third time (or subsequent times) within 3 years, another tool should be used. In Islington, where this is the case and the parent/s have already been issued with 2 penalty notices within a 3-year period, consideration will be given to prosecution under 's444 of the Education Act 1996'.

25. The 3-year period and applicable escalation of fines begins from the date on which the first penalty notice is issued. A third penalty notice cannot be issued to the parent/s in respect of that child within the 3-year timeframe and, in cases where the national threshold is met for a third time, alternative action should be considered, as outlined in the previous paragraph.

Once 3 years has elapsed since the first penalty notice was issued a further penalty notice can be issued, but in most cases, it would not be the most effective tool for changing what may have now become an entrenched pattern of behaviour.

26. For the purposes of the escalation process, ‘previous penalty notices’ include those not paid (including where prosecution was taken forward if the parent/s pleaded or was found guilty) but not those which were withdrawn. Penalty notices issued under the provisions set out regarding suspended or excluded pupils (paragraph 8 above) will not be included.

The following sets out how previous penalty notices for unauthorised absence recorded after 19 August 2024, including those not paid and where prosecution was taken forward and the parent/s pleaded guilty or was found guilty, will count towards the National Framework limit. Withdrawn penalty notices (see paragraph 29 below) and any penalty notices issued before 19 August 2024 will not count towards the 2-penalty limit per child, per parent within a rolling 3-year period.

Count towards the limit

• Penalty notice issued (by any authorised officer) and paid within 21 days.
• Penalty notice issued and paid within 28 days.
• Penalty notice issued and not paid. The local authority prosecuted for the original offence, but the court found the parent/s guilty.

Do not count towards the limit

• Penalty notice issued but later withdrawn.
• Penalty notice issued and not paid. The local authority prosecuted for the original offence, but the court found the parent/s not guilty.

Key considerations prior to the issue of a penalty notice for school absence

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

In cases where support is appropriate, consider on a case-by-case basis the following.

• Has sufficient support already been provided? Sufficient support will usually include:
  • A record of all school-based interventions and support, including outcomes and impact, using the ‘support first’ approach and aimed at improving the attendance of the pupil.
  • Communication/s in writing, notifying parent/s of the concerns regarding their child’s absence. Steps need to be taken to ensure that each parent is in receipt of such correspondence. Where letters are hand delivered to parent/s, accurate records of date/time/person to whom the letter was delivered must be available.
  • Opportunities for parent/s to meet with school staff to share/discuss the barrier/s to regular attendance and identify support strategies to improve attendance.
  • Any agreed attendance contracts, making clear the role of each relevant party in improving the child’s attendance levels.
  • Referrals to wider support services.
  • Where safeguarding concerns are identified, appropriate liaison between relevant agencies including social care, police, health, other educational establishments etc.
• Is a penalty notice the best available tool to improve attendance and change parental behaviour 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?
• For local authorities only: 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, under s444 of the Education Act 1996, for the original offence in cases of non-payment?

If the answer to any of the above questions is ‘yes’, then a penalty notice (or a notice to improve – see paragraphs 35-37 below) in cases where support is appropriate, will usually be issued.

Where support is not appropriate, for a holiday taken during term time that the school has not deemed as meeting ‘exceptional circumstances’ and therefore not authorised, a penalty notice will usually be issued.

28. In deciding whether the support that has been provided is ‘sufficient’, Islington Council will take account of relevant information held in respect of the pupil and family concerned.

Circumstances where a penalty notice for absence may be withdrawn

29. A penalty notice may be withdrawn by the local authority under the following circumstances:

• It is deemed that the penalty notice should not have been issued i.e. where it has been issued outside the terms of the local code of conduct or where the evidence does not support the issuing of a penalty notice.
• Where it has been issued to the wrong person named as the recipient.
• The notice contains material errors.

Authorised officers working together

30. Authorised officers, as outlined in paragraph 4 above, should work together to ensure that penalty notices are used when likely to be effective in changing behaviour/s and improving pupil attendance.

31. For penalty notices being requested/considered based on 10 sessions of G code (i.e. 5 days, consecutive or otherwise, of holiday taken during term time over a rolling period of 10 school weeks) the local authority must be in receipt of the following:

• A copy of the application made by the parent/s to the school relating to the period/s of absence that have been recorded using a G code.
• A copy of the written response sent by the school, advising that the absence would not be authorised and why the reason/s for absence were not deemed to be ‘exceptional.’
• A copy of the pupil’s registration certificate, clearly showing that the national threshold has been met and that the appropriate coding has been used to allow for a penalty notice to be issued.
• Where no application for leave was submitted by the parent/s and the leave was taken without prior discussion/knowledge of the school (e.g. where the parent/s has called to report their child as too unwell to attend school and the pupil is later found to have been absent due to a holiday during term time), the local authority should be provided with the communication between that school and parent/s, clearly showing that parent/s have been made aware of the intention to issue a penalty notice as a result of the unauthorised absences recorded.
  
  32. For penalty notices being requested/considered based on 10 sessions of unauthorised absence (G, O and/or U codes – consecutive or otherwise) over a rolling period of 10 school weeks, the local authority must be in receipt of the following:

• Clear details of the ‘support first’ approach which has been taken by schools/partners to identify the reasons for the pupil’s absence, any barriers impacting the pupil’s attendance and all support strategies which have been offered (whether engaged with by parent/s or not) to remove any such barriers.
• Copies of all letter/emails sent to the parent/s to advise of the concerns held in relation to their child’s absence levels.
• Copies of all letters/emails sent and/or details of all telephone calls which have been made to arrange meetings with the parent/s to establish the reasons for absence and identify what support may be needed to improve attendance patterns and prevent further unauthorised absence
• A copy of any attendance contract/s which have been agreed with parent/s and whether these have been adhered to.
• A link to the school’s attendance policy, which makes clear the escalation process which may be applied in cases of unresolved irregular school attendance, including the risk of legal action under s444 of the Education Act 1996 and this code of conduct.
• A copy of the notice to improve which has been issued, if applicable, to the parent/s (see paragraphs 35-37 below).
• Where a notice to improve has not been issued, schools will be required to share their reasons why. They should also provide a copy of the letter to the parent/s advising them that they are at risk of receiving a penalty notice, should further unauthorised absence be recorded for their child.

33. Upon receipt of referrals submitted by schools, the police or authorised officers, the local authority will carry out all necessary checks and where they have been asked to issue the penalty notice/s, this will be actioned as soon as all necessary checks have been made. In cases where an authorised officer is seeking to issue a penalty notice the local authority will advise whether they agree with the penalty notice/s being issued.

Checks made by the local authority will include:

• Any previous penalty notices that have been issued to the parent/s in respect of the child concerned, to provide clear advice regarding the fine level to be applied.
• Any prosecution cases pending in respect of the family to ensure that duplication is avoided, and appropriate escalation of legal response is considered.
• Evidence of a ‘support first’ approach, in line with the ‘Working Together to Improve School Attendance’ statutory guidance. Where sufficient evidence has not been provided, the local authority, as the independent prosecutor, will not support the issuing of a penalty notice.

34. Whoever is seeking to issue the penalty notice should decide whether proportionate support has been provided, and whether that support has worked or not. Where there is dispute, authorised officers are expected to defer to the local authority’s judgement before issuing a penalty notice.

Notice to improve

35. A notice to improve (previously referred to as a court warning letter) is a final opportunity for the parent/s to engage in support and improve attendance before a penalty notice is issued.

36. If the national threshold has been met and support is appropriate (see paragraph 28 above), but offers of support have not been engaged with by the parent/s or have not previously worked, a notice to improve should usually be sent to give the parent/s a final chance to engage.
An authorised officer can choose not to use a notice to improve in any case, including cases where support is appropriate, because they do not expect a notice to improve to have any impact on a parent’s behaviour (e.g. because the parent/s has previously received one for a similar offence).

37. Local arrangements for the use of a notice to improve across Islington are as follows:

• Schools may request a notice to improve be issued to any parent whose child’s absence levels have triggered the national threshold for a penalty notice – 10 sessions (5 days) of unauthorised absence in a rolling period of 10-school weeks.
• The notice to improve may be used to offer the parent/s a final opportunity to engage with support and improve the attendance of the child concerned. Where the parent/s fails to engage with the offer of support during the notice to improve validity period and/or further unauthorised absences are recorded for the pupil and/or the pupil fails to make significant improvements in their attendance patterns, a penalty notice may be issued in line with this code of conduct.
• All notices to improve will have a validity period of 4 weeks (a maximum of 30 school days) for improvement to take place and will clearly list the attempt/s made and support offered to resolve the absence concerns. Parent/s should be provided with clear contact details for the school staff member/s they should contact to access the support that remains available during the validity period.
• Attendance records will be reviewed daily throughout the improvement period and, where further unauthorised absences are recorded, consideration will be given as to whether a penalty notice should be issued.
• Schools are not required to wait until the 30 school days have passed before considering a penalty notice – decisions will need to be taken on a case-by-case basis, based on the level of parent/pupil engagement and/or the level of attendance improvement recorded.
• Sufficient improvement during the validity period of the notice to improve may include evidence of no further unauthorised absences within the improvement period, or enough improvement tailored and agreed to the family circumstances.

Review arrangements

38. This code of conduct will next be reviewed during the summer term of the 2025/26 academic year, unless local needs and/or changes to the National Framework require otherwise.