Education - unauthorised absence in term time

Following the decision of the High Court in Isle of Wight Council -v- Jon Platt the position regarding unauthorised term time holidays and the issuing of fixed penalty notices has become uncertain for many schools. Nick Gibb, minister for schools, is reported in the press to have  ordered schools in England to ignore the recent ruling. The uncertainty caused by this court decision and the minister’s intervention does not help head teachers/principals. However, permission to appeal is being sought by Isle of Wight Council (the Council). It is reported that the secretary of state will fund the appeal and will seek to be joined into proceedings as an interested party.

The widely reported case concerning Mr Platt involved his decision to take his child out of school during term time to attend a family holiday in the United States. The absence did not involve exceptional circumstances and was not authorised. Mr Platt was advised by the head teacher that a fixed penalty notice would be issued if the child was taken out of school. The holiday proceeded and Mr Platt was issued with a £60 penalty notice which he refused to pay. The deadline for payment lapsed and the penalty doubled to £120.  

The local authority (LA) brought a prosecution in the Magistrates’ Court. At the conclusion of the prosecution case, Mr Platt submitted that there was no case to answer because his child had, in fact, attended school regularly. The Magistrates accepted Mr Platt’s submission and determined that Mr Platt had not failed to secure his child’s regular attendance at school. The LA appealed the decision, but the appeal was dismissed. The High Court held that the Magistrates had been entitled to consider attendance beyond the period of the unauthorised absence when considering if the child had attended school regularly.

The High Court’s decision has opened the door for parents and guardians to take term time holidays, and to challenge decisions of LAs and head teachers to issue fixed penalty notices against them for doing so. Whether attendance is regular is a matter of fact and degree. Head teachers are only entitled to authorise term time absences in exceptional circumstances (Education (Pupil Registration) (England) (Amendments) Regulations 2013 SI 2013/756). This remains the legal position. The Platt decision does force LAs and head teachers to consider carefully individual attendance records beyond a single unauthorised period to determine whether regular attendance of the child at school has been secured by the parent/guardian. If the cumulative attendance indicates that a child has had several unauthorised absences, in addition to the term time holiday, this should weigh more in favour of issuing a fixed term penalty notice. If, as in the case of Platt, the child had a good attendance record, LAs and head teachers should think twice before issuing a fixed penalty notice. The Magistrates’ Court will be bound to follow the High Court’s ruling.

The current position is not ideal and certainly not what the Government intended when it updated the law on term time absences. However, the report that the Council is seeking permission to appeal and that the secretary of state is going to pay the costs and will intervene as an interested party indicates that the secretary of state is not prepared to accept the uncertainty which schools will suffer as a result of the original decision. If permission is not granted, or if it is and the appeal fails, LAs may need to reconsider their codes of conduct which determine the triggers for issuing fixed penalty notices against parents/guardian and the Department for Education is likely to then consider issuing new regulations to restore the status quo.

Hill Dickinson has a wealth of experience in dealing with all aspects of education law and can provide assistance to any schools facing issues with unauthorised term time absences.