Prescribed Day - Compulsory School Age / Regular Attendance / Exceptional Circumstances

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Dear Warwickshire County Council,

Can you please provide me with some clarification to legislation.

S.8 of the Education Act 1996 reads as follows:
- - - - -- - -
8 Compulsory school age.

(1)Subsections (2) and (3) apply to determine for the purposes of any enactment whether a person is of compulsory school age.

[F1(2)A person begins to be of compulsory school age—

(a)when he attains the age of five, if he attains that age on a prescribed day, and

(b)otherwise at the beginning of the prescribed day next following his attaining that age.]
- - - - -- - -

S.444 of the Education Act 1996 reads as follows:
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444 Offence: failure to secure regular attendance at school of registered pupil.

(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.

[F1(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 without reasonable justification to cause him to do so, he is guilty of an offence.]

(2)Subsections (3) 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.

(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,

(b)at any time when he was prevented from attending by reason of sickness or any unavoidable cause, or

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

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

(a)that the school at which the child is a registered pupil is not within walking distance of the child’s home, and

(b)that no suitable arrangements have been made by the local education authority F2. . . for any of the following—

(i)his transport to and from the school,

(ii)boarding accommodation for him at or near the school, or

(iii)enabling him to become a registered pupil at a school nearer to his home.

(5)In subsection (4) “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, subsection (4) shall not apply, but the parent shall be acquitted if he proves—

(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 at a time when he was not prevented from being present by reason of sickness or any unavoidable cause.

(8)A person guilty of an offence under [F3subsection (1)] is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

[F4(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.]

(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.
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Q1: In relation to S.8 Ed Act: (a) What is the *current* prescribed day? (b) on 27th Jan 2015 what was the prescribed day? (c) On June 2nd 2015 what was the prescribed day? If there are/were multiple days, please outline all days for each question.

Q1a: Your "Home School" page, in 2015 stated "In Warwickshire children start Infant or Primary School the September after their fifth birthday." - Can you please provide a copy of the page, as it stood in 2015. (I note that it has been changed now).

Q2: In relation to S.444(1), please provide the information you store which would define the term 'regularly'.

Q3: 444(3)(b): Please provide any guidance you store which might outline any unavoidable cause, or classes of cause.

Q4: 444(3)(a) read in conjunction with Education (Pupil
Registration) (England) (Amendment) Regulations 2013. The amendments 'make clear'
that Headteachers may not grant any leave of absence during term time unless there are
exceptional circumstances. Can you please provide me with a copy of any guidance, or instructional memo's ETC that you store, which outline what might constitute 'exceptional circumstances'.

I am aware that the ACE team stores a document entitled "Guidance on authorised absence in schools - October 2014.pdf" (125kb). Please provide that document, along with any other documents / information you might store.

Yours faithfully,

Wayne Pearsall

Jonathan Sheward,

 
Information request
Our reference: 1330929

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Dear Mr Pearsall
 
Freedom of Information Act 2000
 
Thank you for your request for information that was received on 12 March
2016.
 
We are dealing with your request under the Freedom of Information Act
2000and we aim to send a response by 13 April 2016.
 
In some case, a fee may be payable. If we decide a fee is payable, we will
send you a fee notice and we will require you to pay the fee before
proceeding with your request.
 
The Freedom of Information Act 2000may restrict the release of some or all
of the information you have requested. We will carry out an assessment and
if any exemptionsapply to some or all of the information then we might not
provide that information to you. We will inform you if this is the case
and advise you of your rights to request an internal review and to
complain to the Information Commissioner's Office.
 
We will also advise you if we cannot provide you with the information
requested for any other reason together with the reason(s) why and details
of how you may appeal (if appropriate).
 
Yours sincerely
 
 
Jonathan Sheward
Information Rights Officer
Warwickshire County Council
Information Management
Tel: 01926 418633
Email: [email address]

 
NOTE: Please do not edit the subject line when replying to this email.

Jonathan Sheward,

2 Attachments

 
Information request
Our reference: 1330929

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Dear Mr Pearsall
 
Thank you for your request for information received on 12 March 2016.
 
Please find attached our response to your request.
 
Yours sincerely
 
 
Jonathan Sheward
Information Rights Officer
Warwickshire County Council
Information Management
Tel: 01926 418633
Email: [email address]

 
NOTE: Please do not edit the subject line when replying to this email.

Wayne Pearsall left an annotation ()

As expected.

FYI, the mou with ACE, and Ace referral form sets regular attendance at 85% should anyone need to challenge a 'fine' under s444(1).

Fiona Nicholson left an annotation ()

NAHT said members said they would welcome more guidance on "exceptional circumstances". I understood this to mean from Govnt and that NAHT did its own while waiting (still waiting)
http://www.naht.org.uk/welcome/news-and-...
"Absences for important religious observances are often taken into account but only for the ceremony and travelling time, not extended leave. This is intended for one off situations rather than regular or recurring events."

Jonathan Sheward,

1 Attachment

 
Information request
Our reference: 1330929

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Dear Mr Pearsall
 
Freedom of Information Act 2000
 
Further to my response yesterday, 12 April 2016, to your request
concnerning the Education Act 1996, please see the following ammended
response to your question:

Q2: In relation to S.444(1), please provide the information you store
which would define the term 'regularly'. 
Originally I replied that:

"Information not held.

The Education Act does not provide a prescribed definition of the term
'regularly', and nor does Warwickshire County Council have a prescribed
definition of the term 'regularly' in respect of S.444(1)."

In addition to this I now further advise that: 

We do not give guidance on what we would define the term 'regularly'
however when considering taking any legal action we comply with the
Warwickshire County Council Code of Conduct that can be accessed by the
public on the Warwickshire website. 
 
[1]http://www.warwickshire.gov.uk/pupilnona...
 
I have attached a copy of this for your information also.
 
I hope that this ammendment helps to answer this question more fully.

 
Yours sincerely
 
 
Jonathan Sheward
Information Rights Officer
Warwickshire County Council
Information Management
Tel: 01926 418633
Email: [email address]

 
NOTE: Please do not edit the subject line when replying to this email.

References

Visible links
1. http://www.warwickshire.gov.uk/pupilnona...

Wayne Pearsall left an annotation ()

He's attached this code of conduct by way of subterfuge... The councils fpn referral form clearly sets out that no referral sold be made where the attendance of the child is above 85% in the six weeks preceding referral.

Obviously, the high Court case of LBC BROMLEY V C 2006 RULED THAT A HOLIDAY IN ITSELF CANNOT BE TAKEN TO MEAN THAT A PUPIL DID NOT ATTEND REGULARLY. (refer to paragraphs 19-22).

Furthermore, under both the human rights act, and UK caselaw a person cannot be convicted. If at the time of and alleged infringement the law he is said to have broken was not sufficiently clear so as to ensure he knew he would be breaking the law.

Clearly s.444(1) is not clear.

In addition to this, the code of conduct doesn't take account of many protected characteristics. For instance, my own children are dual Indonesian and British citizens. When they tuen 16, they have a legal obligation to surrender one of those citizenships (Indonesia only permits children to hold dual nationality - as it should be an individual to make the choice as to their nationality).

Under Un law. A person has a right to enter his country of nationality at any time. A person cannot be refused exit from any country including his own. ( Covent civil and political freedoms article 12)

The council has conducted no impact assessment into such matters. Neither has any of wccs schools.

Dear Jonathan Sheward,

YOur reference: 1330929

Jon, can you please. For the record confirm something: the code of conduct doesn't say what is regular attendance does it?

You will also note that said code requires that you have due regard to hr and equalities legislation, and I have already put the council to proof that they have had due regard in formulating this policy. (something that I know has not been done).

Surely this therefore makes this policy unlawful?

Yours sincerely,

Wayne Pearsall

Jonathan Sheward,

Dear Mr Pearsall,

Thank you for your e-mail of 13 April 2016.

I confirm that the Code of Conduct does not define regular attendance.

As advised in my original response, Warwickshire County Council does not
have have a prescribed definition of the term 'regularly' in respect of
S.444(1)." 

Yours sincerely

Jonathan Sheward 
Information Rights Officer 
Warwickshire County Council 
Information Management 
Tel: 01926 418633 
Email: [1][email address]

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Dear Jonathan Sheward,

YOur reference: 1330929

Jon, can you please. For the record confirm something: the code of conduct
doesn't say what is regular attendance does it?

You will also note that said code requires that you have due regard to hr
and equalities legislation, and I have already put the council to proof
that they have had due regard in formulating this policy. (something that
I know has not been done).

Surely this therefore makes this policy unlawful?

Yours sincerely,

Wayne Pearsall

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