McHale & Co. Solicitors Blog

How Regular is Regular?

On 6 April 2017 the Supreme Court handed down its judgment in the long-awaited case involving Jon Platt and the Isle of Wight Council (“the Council”), bringing to an end Mr Platt’s battle over his refusal to pay a fine for taking his daughter out of school for a term-time holiday.

Mr Platt’s case was that the Council could not establish that his daughter’s attendance at school was not regular, and so he could not be guilty of failing to secure his daughter’s regular attendance at school, contrary to section 444(1) of the Education Act 1996 (“the Act”).

The Magistrates’ Court had agreed with him and found that there was no case to answer. The Council appealed the decision, which came before Lady Hale, who delivered a comprehensive judgment, with which the remaining Law Lords concurred.

The question for the Supreme Court to decide, it was held, was what was the meaning of “fails to attend regularly” for the purposes of the Act?

 It had been argued on behalf of Mr Platt that ‘regularly’ meant “sufficiently frequently”, and it was conceded by Lady Hale that this ‘...might well be the meaning assumed by many people at first reading...’ but after a careful and logical examination of the preceding law, leading up to today’s position, she gave a list of ten reasons as to why this could not be the case, and that in fact, regular attendance means 100% attendance.

In addition to inference from the existing legislation, Lady Hale also pointed out that the law explicitly states that 100% attendance is expected from boarders, so the same should be expected of day pupils.

She also pointed out that if the “sufficiently frequently” interpretation were to be adopted, then it would be too uncertain to found a criminal offence, as there could be no certainty as to the period of time to take into account when determining regularity (a term, or full school year?) or how good or bad reasons were for previous absences.  

Perhaps more tellingly, Lady Hale indicated that there were very good policy reasons why regular attendance had to mean 100% attendance, citing the disruptive effect of unauthorised absences which causes work having to be made up and extra work for teachers, as well as disrupting the work of other pupils. Indeed, this was the reason why the Council appealed the Magistrates’ decision and why the Secretary of State for Education also intervened in support.  She added that “...if one pupil can be taken out whenever it suits the parent, then so can others.”

It will not have gone unnoticed that the official line taken by the DFE is that even one missed day of school can affect a child’s education.

The only circumstances where it would be acceptable for a child to miss school during term time would be those already outlined in the statute (for example if the child is ill or is absent due to a religious observance) or if the leave is authorised by the school.

Lady Hale concluded that the word ‘regularly’ in the Act meant “in accordance with the rules prescribed by the school”. In other words, it is up to the school, in the absence of statutory exceptions, to determine whether a child was attending regularly.

It is perhaps unsurprising that the Supreme Court came down on the side of the Council, and it is submitted that the true reason for the decision was one of public policy, rather than a correct interpretation of the word ‘regular’.

Many pupils up and down the country play sports for their school, or take part in other school organised activities, such as the Duke of Edinburgh Award Scheme, which inevitably means that they are absent from lessons during term time.

Additionally, most schools will authorise absences as a matter of policy if a pupil is, for example, taking part in non-school extra-curricular activities, especially if it is at a high representative level.

Whilst nobody would deny the benefits such activities bring to a child’s overall development in either case, (in the former situation these are not even classed as absences as such) but in both cases children are missing lessons and so are the consequences for learning not the same as those observed by Lady Hale in her judgment?

The other difficulty with leaving the decision in the schools’ hands is that much will depend upon the interpretation of what constitutes ‘exceptional circumstances’, the current test for allowing children time off during term-time.  Indeed, what if in the case of a family with children at different schools, one school authorises absence for one child, but the other school does not do so for the other?

It should also be noted that school attendance is considered within one of the ‘Grade Descriptors’ for ‘Personal Development, Behaviour and Welfare’ in the Ofsted School Inspection Handbook; an ‘Outstanding’ assessment in this area indicating that pupils ‘rarely miss a day of school’. Could this influence the school’s approach, if there is a possible adverse outcome in the event of an Ofsted inspection?

It is understandable that the Supreme Court could not be seen to be supporting parents who decide to take their children out of school whenever they feel like it for a holiday and this should in the main be discouraged. However, it seems that inevitably many parents will be caught by the rule of unintended consequences when they find themselves at the mercy of inflexible approaches to attendance by schools, in turn themselves subject to scrutiny by government authorities. 

 

Categories: Civil Litigation

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