Legal Update: Managing school attendance

Richard Oldershaw
Wednesday, June 1, 2022

Richard Oldershaw, lead adviser at Coram’s Child Law Advice Service, explains how schools and councils should monitor pupil attendance and home education arrangements and what to do when problems arise.

Some parents see no alternative to home education. Picture: Zoran Zeremski/Adobe Stock
Some parents see no alternative to home education. Picture: Zoran Zeremski/Adobe Stock

A survey by the Association of Directors of Children’s Services (ADCS) in late 2021 estimated that the cumulative number of children and young people being electively home educated at some point during the 2020/21 academic year increased by 34 per cent on 2019/20 totals. It is concerning that many local authorities reported that notifications received had been for families with multiple layers of vulnerability where home education “does not seem the most appropriate route for the children concerned”.

These concerns were echoed in the recent Children Not in School government consultation, which found increasing numbers of children being home educated, particularly during the pandemic, for reasons other than a commitment to home education. A significant number of schools also reported to Ofsted in 2021 that they had more Covid-19 related absences among disadvantaged and vulnerable pupils including those with special educational needs and/or disabilities.

‘Off the radar’

The children’s commissioner for England, Dame Rachel de Souza, also estimated that a significant cohort “fell off the radar” during lockdown with 80,000 to 100,000 children missing from school registers and launched an inquiry into pupil absenteeism. While it would be reasonable to speculate that most of this cohort is receiving education at home it is impossible to confirm this due to the lack of a register of home-educated children.

In our work at the Child Law Advice Service (CLAS), we have seen a considerable rise in the number of queries in the areas of school attendance and home education. The issuing of fines for school absence had dropped significantly during the pandemic as schools and local authorities adopted a more lenient approach. However, in December 2021, Education Secretary Nadhim Zahawi urged councils to utilise penalty notices in efforts to boost school attendance and we are seeing this return to a stricter approach reflected in the types of enquiries that we receive.

There are a considerable number of cases where the pandemic has indirectly affected a pupil’s wellbeing, resulting in decreased school attendance. One case that CLAS has advised on involved a 10-year-old child suffering anxiety and depression which had worsened during lockdown. The child was on a CAMHS waiting list awaiting further assessment. At school the child suffered bullying and exhibited behavioural issues which led to the school placing the child in internal isolation. The school was not offering any support and a local authority attendance officer was threatening fines and prosecution.

At CLAS, we also speak to parents and carers who feel that they have no other option but to withdraw their child from the school roll and provide home education if their child is regularly missing school. One parent felt that they were being harassed by the school with constant phone calls and repeated requests for additional evidence. This parent believed their only option was to withdraw their child from the school roll despite the fact that the child wanted to continue attending once they felt better. The parent then had to provide home education which led to her not being able to work as often and the impact on the whole family was significant. It may not have been the best option for the child, but the alternative was a constant battle with the school and/or local authority over whether an absence is authorised or otherwise, as well as securing alternative provision.

Open dialogue

These cases are contentious as schools will argue that they do not have sufficient discretion to authorise an absence in such circumstances or that the evidence provided is inadequate. It is paramount to prioritise an open dialogue with schools and the local authority to build trust with pupils and their families before escalating cases and hastening to fines and prosecution.

The government has announced its intention to create a national register of all children of compulsory school age who are not registered at a school maintained by a local authority, a non-maintained special school, an alternative provision academy, or a registered independent school. It is argued that the register would help safeguard these children by recording their existence and help local authorities to fulfil their duty under the Education Act (1996) section 436A to ensure children receive a suitable education. There is a balance to be struck between collecting more information, particularly where it will inevitably capture legitimate choices made by parents and carers, and the safeguards that doing so will bring for the most vulnerable children. Ultimately, the cost of not knowing where some of our most vulnerable children are, or if they are receiving a suitable education, is too high not to take action.

POINTS FOR PRACTICE

  • Schools should authorise absences due to illness unless they have genuine cause for concern about the veracity of an illness.

  • Local authorities are responsible for arranging suitable full-time education for children of compulsory school age who, because of illness, would not receive suitable education without such provision.

  • An open dialogue between parents and schools/local authority should be the first option to build trust with pupils and their families before moving to fines and prosecution.

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