39School attendance orders(1)

The Education Act 1996 is amended as follows.

(2)

After section 436G (as inserted by section 38) insert—School attendance orders

436HPreliminary notice for school attendance order(1)

A local authority must serve a preliminary notice on a child’s parent in relation to a child for whom the authority is responsible if it appears to the authority that—

(a)

the child is of compulsory school age, and

(b)

either condition A or condition B is met.

(2)

A local authority may serve a preliminary notice on a child’s parent if it appears to the authority that either condition C or condition D is met.

(3)

A “preliminary notice” means a notice requiring the child’s parent on whom the notice is served to satisfy the local authority that—

(a)

the child is receiving suitable education, where condition A, C or D is relied on to serve the notice;

(b)

the child is receiving education that is in their best interests, where condition B is relied on to serve the notice.

(4)

Condition A is that the child is not receiving suitable education, either by regular attendance at school or otherwise.

(5)

Condition B is that—

(a)

the local authority or another local authority is—

(i)

conducting enquiries in respect of the child under section 47 of the Children Act 1989 (duty to investigate), or

(ii)

taking action under section 47(8) of that Act to safeguard or promote the child’s welfare, in a case where the enquiries mentioned in sub-paragraph (i) have led the local authority to conclude that the child is suffering, or is likely to suffer, significant harm (within the meaning of section 31(9) and (10) of that Act), or has taken such action during the period of five years ending with the date on which a preliminary notice is to be served under subsection (1),

(b)

the child is not regularly attending school, and

(c)

it would be in the child’s best interests to receive education by regular attendance at school.

(6)

Condition C is that—

(a)

the child is eligible to be registered by the local authority under section 436B,

(b)

the authority has asked the child’s parent for information under section 436D(1), and

(c)

the child’s parent has not provided that information before the end of the relevant period (as defined in section 436D(5)(a)), or has provided incorrect information.

(7)

Condition D is that the child’s parent is under a duty to provide information to the local authority under section 436D(2)(a), (b) or (c) in relation to the child and—

(a)

has not provided the information before the end of the relevant period (as defined in section 436D(5)), or

(b)

has provided incorrect information.

(8)

For the purpose of determining whether a preliminary notice must or may be served under this section in respect of a child, the local authority—

(a)

must consider the settings where the child is being educated that the local authority knows about and where the child lives, and

(b)

may request the child’s parent on whom the preliminary notice would be served to allow the local authority to visit the child inside any of the homes in which the child lives.

(9)

If a request under subsection (8)(b) is refused by the person to whom it is made, the local authority must consider that to be a relevant factor in determining whether to serve a preliminary notice.

(10)

A preliminary notice must—

(a)

state which of conditions A to D are relied on to serve the notice,

(b)

be served without delay, and in any event before the end of the period of five days beginning with the day on which it appears to the local authority that the requirements of subsection (1) or (2) are met, and

(c)

specify the period within which the person must respond to the notice, which must be not less than 15 days beginning with the day on which the notice is served.

436ISchool attendance orders(1)

A local authority must serve an order under this section on a child’s parent if—

(a)

the authority has served a preliminary notice on the child’s parent under section 436H ,

(b)

the child’s parent fails to satisfy the local authority, within the period specified in the notice, that—

(i)

the child is receiving suitable education, in a case where condition A, C or D is cited in the notice,

(ii)

it is in the best interests of the child to receive education otherwise than by regular attendance at school, in a case where condition B is cited in the notice, and

(c)

in the opinion of the authority it is expedient that the child should attend school.

(2)

But a local authority must not serve an order under this section on a child’s parent if—

(a)

either—

(i)

condition B was the only condition cited in the preliminary notice served under section 436H in relation to the child, or

(ii)

condition B and another condition were cited in that preliminary notice, but the child’s parent has satisfied the local authority that the child is receiving suitable education,

(b)

the local authority is no longer conducting enquiries or taking action in respect of the child as mentioned in section 436H(5)(a), and

(c)

the local authority is not aware of any other enquiries being made under section 47 of the Children Act 1989 or of any other action being taken under section 47(8) of that Act, or which has been taken during the period of five years ending with the date that the order would be made, in respect of the child.

(3)

For the purpose of determining whether an order must be served under this section in respect of a child, the local authority—

(a)

must consider the settings where the child is being educated that the local authority knows about and where the child lives,

(b)

must consider how the child is being educated and what the child is learning, so far as is relevant in the particular case, and

(c)

may request the child’s parent on whom the preliminary notice has been served under section 436H to allow the local authority to visit the child inside any of the homes in which the child lives.

(4)

If a request under subsection (3)(c) is refused by the person to whom it is made, the local authority must consider that to be a relevant factor in deciding whether the child’s parent has failed to satisfy the local authority as mentioned in subsection (1)(b)(i) or (ii).

(5)

An order under this section (a “school attendance order”) is an order requiring the person on whom it is served to cause the child to become a registered pupil at a school named in the order.

(6)

A school attendance order under this section—

(a)

must be served without delay, and in any event before the end of the period of five days beginning with the day on which the authority determines which school is to be named in the order, and

(b)

must be in the prescribed form.

(7)

A school attendance order under this section continues in force (subject to any amendment made by the local authority) for so long as the child is of compulsory school age, unless—

(a)

it is revoked by the authority, or

(b)

a direction is made in respect of it under section 436Q(6) or 447(5).

(8)

Where a maintained school is named in a school attendance order under this section—

(a)

the local authority must without delay, and in any event before the end of the period of five days referred to in subsection (6)(a) inform the governing body and the head teacher, and

(b)

the governing body and the local authority must admit the child to the school.

(9)

Where an Academy school or alternative provision Academy is named in a school attendance order under this section—

(a)

the local authority must without delay, and in any event before the end of the period of five days referred to in subsection (6)(a) inform the proprietor and the principal, and

(b)

the proprietor must admit the child to the school.

(10)

Subsections (8) and (9) do not affect any power to exclude from a school a pupil who is already a registered pupil there.

436JSchool attendance order for child with EHC plan (England)(1)

Subsections (2) and (3) apply where a local authority in England is required to serve a school attendance order under section 436I in respect of a child for whom the authority maintains an EHC plan.

(2)

Where the EHC plan specifies the name of a school, that school must be named in the order.

(3)

Where the EHC plan does not specify the name of a school—

(a)

the authority must amend the plan so that it specifies the name of a school, and

(b)

that school must then be named in the order.

(4)

An amendment to an EHC plan required to be made under subsection (3)(a) is to be treated as if it were an amendment made following a review under section 44 of the Children and Families Act 2014, and that section and regulations made under it apply accordingly.

(5)

Where—

(a)

a school attendance order is in force in respect of a child for whom the local authority maintain an EHC plan, and

(b)

the name of the school specified in the plan is changed,

the local authority must amend the order accordingly.

(6)

Where a school attendance order is in force in respect of a child who subsequently becomes a child for whom the local authority maintain an EHC plan which specifies the name of a school, the local authority must ensure that school is named in the order.

436KSchool attendance order for child with individual development plan (Wales)(1)

Where a local authority in Wales is required to serve a school attendance order under section 436I in respect of a child for whom an individual development plan is maintained in which a particular school is named, that school must be named in the order.

(2)

Where—

(a)

a school attendance order is in force in respect of a child for whom an individual development plan is maintained in which a particular school is named, and

(b)

the name of the school specified in the plan is changed,

the local authority must amend the order accordingly.

(3)

Where a school attendance order is in force in respect of a child who subsequently becomes a child for whom an individual development plan is maintained in which a particular school is named, the local authority must ensure that school is named in the order.

436LSchool nomination notice for school attendance order(1)

Before a local authority serves a school attendance order under section 436I on a person in respect of a child, other than a child for whom the authority maintains an EHC plan or a child for whom an individual development plan is maintained in which a particular school is named, the authority must serve a notice on the person under this section (a “school nomination notice”).

(2)

A school nomination notice is a notice in writing—

(a)

informing the person of the local authority’s intention to serve the order,

(b)

specifying the school which the authority intends to name in the order and, if the authority considers it fit, one or more other schools which it regards as suitable alternatives, and

(c)

stating the effect of subsections (3) to (6).

For periods within which the school nomination notice must be served, see section 436N(6) and (7).

(3)

If the school nomination notice specifies one or more alternative schools and the person selects one of them before the end of the period of 15 days beginning with the day on which the notice is served, the school selected by the person must be named in the order.

(4)

If—

(a)

within the period mentioned in subsection (3) the person—

(i)

applies for the child to be admitted to a school which is an Academy school or alternative provision Academy and notifies the local authority which served the notice of the application, or

(ii)

applies for the child to be admitted to a school maintained by a local authority and, where that authority is not the local authority which served the notice, notifies the latter authority of the application, and

(b)

the child is offered a place at the school as a result of the application,

that school must be named in the school attendance order.

(5)

If—

(a)

within the period mentioned in subsection (3) the person applies to the local authority by whom the notice was served for education to be provided at a school which is not a school maintained by a local authority, an Academy school or alternative provision Academy, and

(b)

the child is offered a place at the school under arrangements made by the authority under which the fees payable in respect of the education provided at the school are to be paid by them under section 517,

that school must be named in the school attendance order.

(6)

If, within the period mentioned in subsection (3)—

(a)

the person—

(i)

applies for the child to be admitted to a school which is not maintained by a local authority, an Academy school or an alternative provision Academy and in respect of which no application is made under subsection (5), and

(ii)

notifies the local authority by whom the notice was served of the application,

(b)

the child is offered a place at the school as a result of the application, and

(c)

the school is suitable to the child’s age, ability and aptitude and to any special educational needs the child may have,

that school must be named in the school attendance order.

436MSchool nomination notice: restrictions(1)

A local authority may not specify a school in a school nomination notice if the child is permanently excluded from it.

(2)

A local authority may not specify a maintained school or Academy school in a school nomination notice if the admission of the child would, because of the need to take measures to avoid failing to comply with any duty applicable to the school in relation to class sizes, prejudice the provision of efficient education or the efficient use of resources.

(3)

A local authority may not specify a maintained school or Academy school in a school nomination notice if, were the child concerned admitted to the school in accordance with a school attendance order resulting from the notice, the number of pupils at the school in the child’s age group would exceed the relevant number.

(4)

The relevant number is—

(a)

in the case of a maintained school, the number determined in accordance with section 88C or 89 of the School Standards and Framework Act 1998 as the number of pupils in the child’s age group which it is intended to admit to the school in the school year in which the child would be admitted, or

(b)

in the case of an Academy school, the number determined in accordance with the Academy arrangements relating to the school or any enactment as the number of such pupils.

(5)

Subsection (3) does not prevent a local authority from specifying a maintained school where the authority is responsible for determining the arrangements for the admission of pupils to the school.

(6)

Subsection (3) also does not prevent a local authority from specifying a maintained school or Academy school if—

(a)

in the opinion of the authority the school is a reasonable distance from the home of the child, and

(b)

there is no maintained school or Academy school in their area which—

(i)

the authority could specify (apart from subsection (3)), and

(ii)

is in the opinion of the authority a reasonable distance from the home of the child.

436NSchool nomination notice: procedure(1)

Before deciding to specify a maintained school, Academy school or alternative provision Academy in a school nomination notice a local authority must consult—

(a)

in the case of a maintained school—

(i)

the governing body, and

(ii)

if another local authority is responsible for determining the arrangements for the admission of pupils to the school, that authority, or

(b)

in the case of an Academy school or alternative provision Academy, the proprietor.

(2)

Where a local authority decides to specify a maintained school, Academy school or alternative provision Academy in a school nomination notice the authority must, before serving the notice, serve notice in writing of their decision on—

(a)

in the case of a maintained school—

(i)

the governing body,

(ii)

the head teacher, and

(iii)

if another local authority is responsible for determining the arrangements for the admission of pupils to the school, that authority, or

(b)

in the case of an Academy school or alternative provision Academy—

(i)

the proprietor, and

(ii)

the principal.

(3)

A notice under subsection (2) must be served without delay, and in any event before the end of the period of 15 days beginning with the expiry of the period specified in the notice under section 436H.

(4)

A person on whom a notice is served under subsection (2)(a)(i) or (iii) or (b)(i) may apply to the Secretary of State in relation to a school in England, or to the Welsh Ministers in relation to a school in Wales, for a direction under this section and, if they do so, must inform the local authority which served the notice.

(5)

An application under subsection (4) must be made—

(a)

if the notice is served on a school day, before the end of the period of 10 school days beginning with the day on which the notice is served, or

(b)

if the notice is served on a day that is not a school day, before the end of the period of 10 school days beginning with the first school day following the day on which the notice is served.

(6)

If the local authority which served a notice under subsection (2) is not informed of an application under subsection (4) within the period specified in subsection (5), the authority must serve the school nomination notice without delay, and in any event before the end of the period of five days beginning with the day after the day on which the period specified in subsection (5) ended.

(7)

Where the Secretary of State gives a direction under this section in relation to a school in England or the Welsh Ministers give a direction under this section in relation to a school in Wales—

(a)

the school or schools to be specified in the school nomination notice are to be determined in accordance with the direction, and

(b)

the school nomination notice must be served without delay, and in any event before the end of the period of five days beginning with the day after that on which the direction is given.

(8)

If a local authority in England serves a notice under subsection (2) specifying a school in Wales and an application for a direction is made to the Welsh Ministers under subsection (4) in relation to that notice, the direction under this section may only—

(a)

confirm that a school specified in the notice under subsection (2) should be specified in the school nomination notice, or

(b)

refer the question of which school or schools should be specified in the school nomination notice back to the local authority to determine.

(9)

If a local authority in Wales serves a notice under subsection (2) specifying a school in England, and an application for a direction is made to the Secretary of State under subsection (4) in relation to that notice, the direction under this section may only—

(a)

confirm that a school specified in the notice under subsection (2) should be specified in the school nomination notice, or

(b)

refer the question of which school or schools should be specified in the school nomination notice back to the local authority to determine.

436OAmendment of school attendance order(1)

This section applies where a school attendance order under section 436I is in force in respect of a child, other than a child for whom the local authority maintains an EHC plan or a child for whom an individual development plan is maintained in which a particular school is named.

(2)

If at any time—

(a)

the person on whom the order is served applies for the child to be admitted—

(i)

to a school maintained by a local authority, an Academy school or an alternative provision Academy, and

(ii)

which is different from the school named in the order,

(b)

the child is offered a place at the school as a result of the application, and

(c)

the person requests the authority that served the order to amend the order by substituting that school for the one currently named,

the authority must comply with the request.

(3)

If at any time—

(a)

the person on whom the order is served applies to the authority for the child to be admitted—

(i)

to a school not maintained by a local authority, an Academy school or an alternative provision Academy, and

(ii)

which is different from the school named in the order,

(b)

(c)

the person requests the authority to amend the order by substituting that school for the one currently named,

the authority must comply with the request.

(4)

If at any time—

(a)

the person on whom the order is served applies for the child to be admitted—

(i)

to a school not maintained by a local authority, an Academy school or an alternative provision Academy,

(ii)

which is different from the school named in the order, and

(iii)

in respect of which no application is made under subsection (3),

(b)

the child is offered a place at the school as a result of the application,

(c)

the school is suitable to the child’s age, ability and aptitude and to any special educational needs the child may have, and

(d)

the person requests the authority to amend the order by substituting that school for the one currently named,

the authority must comply with the request.

436PRevocation of school attendance order(1)

This section applies where a school attendance order made by a local authority under section 436I is in force in respect of a child.

(2)

The local authority must revoke the order if—

(a)

the order was served following a preliminary notice under section 436H in which the only condition cited was condition B,

(b)

the local authority is no longer conducting enquiries or taking action in respect of the child as mentioned in section 436H(5)(a), and

(c)

(3)

The person on whom the order is served may at any time request the local authority to revoke the order on the ground that arrangements have been made—

(a)

for the child to receive suitable education otherwise than at a school, where the order was served—

(i)

as a result of the person failing to satisfy the local authority that the child is receiving suitable education, or

(ii)

as a result of the person failing to satisfy the local authority both that the child is receiving suitable education and that it is in the best interests of the child to receive education otherwise than by regular attendance at school, where subsection (2)(b) and (c) applies;

(b)

for the child to receive education, otherwise than at a school, that is in their best interests, where the order was served as a result of the person failing to satisfy the local authority that it is in the best interests of the child to receive education otherwise than by regular attendance at school.

(4)

The authority must comply with a request under subsection (3), unless the authority is of the opinion that the arrangements mentioned in subsection (3)(a) or (b), or both, as the case may be, have not been made for the child.

(5)

If a person is aggrieved by a refusal of a local authority in England to comply with a request under subsection (3)—

(a)

the person may refer the question to the Secretary of State, and

(b)

the Secretary of State must give such direction determining the question as the Secretary of State considers appropriate.

(6)

If a person is aggrieved by a refusal of a local authority in Wales to comply with a request under subsection (3)—

(a)

the person may refer the question to the Welsh Ministers, and

(b)

the Welsh Ministers must give such direction determining the question as the Welsh Ministers consider appropriate.

(7)

Where the child is one for whom the local authority maintains an EHC plan—

(a)

if the name of a school or other institution is specified in the EHC plan, subsection (3) does not apply;

(b)

if the name of a school or other institution is not specified in the EHC plan, a direction under subsection (5)(b) may require the authority to make such amendments in the plan as the Secretary of State considers necessary or expedient in consequence of the determination.

(8)

Where the child is one for whom the local authority maintains an individual development plan—

(a)

if the name of a school or other institution is specified in the plan, subsection (3) does not apply;

(b)

if the name of a school or other institution is not specified in the plan, a direction under subsection (6)(b) may require the authority to make such amendments in the plan as the Welsh Ministers consider necessary or expedient in consequence of the determination.

436QOffence of failure to comply with school attendance order(1)

If a person on whom a school attendance order under section 436I is served fails to comply with the requirements of the order, the person is guilty of an offence.

(2)

Subsection (1) does not apply if—

(a)

the person proves that arrangements have been made for the child to receive suitable education otherwise than at a school, where the order was served as a result of the person failing to satisfy the local authority that the child is receiving suitable education,

(b)

the person proves that arrangements have been made for the child to receive education, otherwise than at a school, that is in their best interests, where the order was served as a result of the person failing to satisfy the local authority that it is in the best interests of the child to receive education otherwise than by regular attendance at school,

(c)

section 436H(5)(a) is no longer met in respect of the child, where the order was served following a preliminary notice under section 436H which cited only condition B, or

(d)

both—

(i)

the person proves that arrangements have been made for the child to receive suitable education otherwise than at a school, and

(ii)

section 436H(5)(a) is no longer met in respect of the child,

where the order was served following a preliminary notice under section 436H which cited condition B and another condition.

(3)

The reference in subsection (1) to failure to comply with the requirements of a school attendance order includes causing a child to cease to be registered at the school named in the school attendance order.

(4)

Subsection (3) does not apply in circumstances where—

(a)

the school has, pursuant to section 436J, 436K or 436O, ceased to be the school named in the school attendance order, or

(b)

the school attendance order has been revoked pursuant to section 436P.

(5)

A person who—

(a)

fails to comply with the requirements of a school attendance order under section 436I by not causing a child to become a registered pupil at the school named in the order, and

(b)

is convicted of an offence under this section in respect of the failure,

may be found guilty of an offence under this section again if the failure continues.

(6)

If, in proceedings for an offence under this section, the person is acquitted, the court may direct that the school attendance order ceases to be in force.

(7)

A direction under subsection (6) does not affect the duty of the local authority to take further action under section 436I if at any time the authority is of the opinion that, having regard to any change of circumstances, it is expedient to do so.

(8)

A person who commits an offence under this section is liable on summary conviction to imprisonment for a term not exceeding the maximum term for summary offences or a fine not exceeding level 4 on the standard scale (or both).

(9)

In subsection (8), “the maximum term for summary offences” means—

(a)

if the offence is committed before the time when section 281(5) of the Criminal Justice Act 2003 comes into force, six months;

(b)

if the offence is committed after that time, 51 weeks.

436RReferences to “Academy school” and “Academy arrangements”(1)

In sections 436I and 436L to 436O, a reference to an Academy school includes a reference to a city technology college and a city college for the technology of the arts.

(2)

The reference in section 436M to Academy arrangements includes a reference to an agreement under section 482.

436SReferences to “regulations” and “prescribed”(1)

In sections 436B(6), 436C(4) and 436E(7) “regulations” means—

(a)

regulations made by the Secretary of State in relation to England, and

(b)

regulations made by the Welsh Ministers in relation to Wales.

(2)

In sections 436C, 436E, 436F, 436I and paragraph 5 of Schedule 31A “prescribed” means—

(a)

prescribed by regulations made by the Secretary of State in relation to England, and

(b)

prescribed by regulations made by the Welsh Ministers in relation to Wales.

(3)

In section 572 (service of notices and other documents), at the end insert—(4)

This section does not preclude any notice or order under sections 436H to 436P (which relate to school attendance orders) from being served by any other effective method.

(4)

In Schedule 1 (pupil referral units), for paragraph 14 substitute—14(1)

Where a pupil referral unit is named in a school attendance order made by a local authority under section 436I—

(a)

the local authority must without delay, and in any event within the period of five days referred to in section 436I(6)(a) inform the teacher in charge of the unit, and

(b)

if another local authority is responsible for determining the arrangements for the admission of pupils in the unit, that authority must admit the child to the unit,

but paragraph (b) above does not affect any power to exclude from a unit a pupil who is already a registered pupil there.

(2)

Section 436L(4) does not apply in relation to a pupil referral unit.

(3)

A local authority—

(a)

must, in a case where another local authority is responsible for the admission of pupils to a pupil referral unit, consult that authority before deciding to specify that unit in a school nomination notice under section 436L, and

(b)

if the authority decides to specify the unit in the notice, must serve notice in writing of their decision on that authority.

(4)

Section 436N(3) to (9) applies where notice is served on a local authority under sub-paragraph (3) above as it applies where notice is served under section 436N(2).

(5)

The parent of a child in respect of whom a school attendance order under section 436I is in force may not under section 436O request the local authority to amend the order by substituting a pupil referral unit for the school named in the order.

(6)

Where a child is a registered pupil at both a pupil referral unit and at a school other than such a unit, the references in section 444 to the school at which the child is a registered pupil are to be read as references to the unit.