HCR Law Events

7 July 2022

Schools bill: children not in school

During Covid-19 the issue of children missing education was brough to the forefront. Many children are simply not registered pupils at a school and may not be receiving an education which meets their needs in terms of their age, ability and aptitude, as well as special educational needs.

The government wants to tackle the numbers of children who are not in school. They aim to do this by ensuring that parents who educate their children at home receive support, and local authorities have the appropriate tools to carry out their duties in respect of education and safeguarding.

Children not in school registers

Local authorities in England will be required to establish and maintain a children not in school register to record eligible children of compulsory school age who are:

  • Home-schooled
  • Flexi-schooled
  • Receiving alternative provision in an unregistered setting

This means that parents and providers of out-of-school education will need to provide information to the local authority to populate the register.

Changes to school attendance orders

Two new scenarios will be introduced whereby the local authority will be required to issue a ‘preliminary notice’, requiring parents to provide evidence that their child is receiving a suitable education:

  • Where a parent has been asked for information by the local authority to understand whether the individual is the child’s parent, and/or whether the child should be on the register, and the parent has either failed to provide information, or provided incorrect information
  • Where an individual has not complied with parental duties under section 436D

It is proposed that, in the future, when a parent receives a preliminary notice, they will have ten days, instead of the current 15 days, to satisfy the local authority that their child is receiving a suitable education.

In issuing the preliminary notice, the local authority will be required to give this within three days of the event which triggers their duty to issue it. This sets out the government’s aim to require local authorities to act immediately to investigate any potential matter of a child not receiving a suitable education.

What does this mean for academies?

An academy may be named in a school attendance order, so long as admitting the child would not take the academy above its published admission number. If this rules out all schools in the area, an academy school may still be chosen if it is reasonably close to the child’s home. However, an academy cannot be specified if the child’s admission would force the school to take prejudicial measures to avoid exceeding the infant class size limit.

The academy will receive notice of the local authority intention to name it in a school attendance order within 15 days of the expiry of the preliminary notice. The academy will then have ten days to apply to the Secretary of State for a direction that they should not be named in the school attendance order.

New penalties

It will be an offence to fail to comply with a school attendance order, for which the parent can be prosecuted and convicted. It is important to note that a parent can be prosecuted and convicted for each instance of non-compliance with the same School Attendance Order, which changes the current position whereby a parent cannot be found guilty of breaching the same School Attendance Order twice.  The penalty for a breach of a School Attendance Order will be a fine of up to £2,500, which is an increase from the current fine of up to £1,000, or a term of imprisonment of up to three months (which will become a maximum of 51 weeks after wider changes to criminal sentencing law come into force) or both.

What this means for you

Academies should be prepared to provide the local authority with any information which it requires in order to maintain the children not in school register, and should be aware of the changes to the process for naming an academy in a school attendance order. If you require support in challenging a school attendance order before the Secretary of State, our education team will be pleased to support you.

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About the Author
Emma Swann, Partner, Head of Academies

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