Free article: Prosecution or penalty notice: Which is the correct response? Featured

Published: Sunday, 14 September 2014

Ben Whitney looks at the circumstances that might dictate how schools and local authorities respond to cases of persistent absence.


  • Prosecution and penalty notices are both applicable only to unauthorised absences, and only parents can face legal action, not the child.
  • Depending on the seriousness of the incident, there are two levels of offence under the Education Act 2006.
  • Differing circumstances may require different legal responses.

Legal background

The introduction of penalty notices (PNs) for non-attendance under the Anti-social Behaviour Act 2003, in addition to the powers that local authorities (LAs) already had under the Education Act 1996, was intended to bring about greater flexibility and a more rapid response to low-level unauthorised absence. As a result, many more parents now face some legal intervention. But not all of these cases would have been suitable for full prosecution, even though that is supposed to be the result if the parents choose not to pay.

So what criteria are reasonable and appropriate for each course of action?

Although this is not made explicit in the DfE Guidance (Parental responsibility measures for school attendance and behaviour: Statutory guidance for maintained schools, academies, local authorities and the police, November 2013;, the use of these two approaches may require different 'thresholds' in order to ensure that they are applied appropriately.


The DfE Guidance explains the nature of these two powers as follows:

Prosecutions by LAs

'If a pupil of compulsory school age fails to attend regularly at a school at which they are registered, or at a place where alternative provision is provided for them, the parents may be guilty of an offence and can be prosecuted by the LA. Only LAs can prosecute parents and they must fund all associated costs. LAs should consider the Attorney General's Guidelines for Crown Prosecutors in all prosecution cases. LAs must conduct all investigations in accordance with the Police and Criminal Evidence (PACE) Act 1984. There are statutory defences for parents to use under the 1996 Act. The fines available to the courts if parents are found guilty of the section 444 (1) offence include a level 3 fine of up to £1,000. If they are found guilty of the section 444 (1A) offence, the fine is at level 4, up to £2,500, and the court can also sentence them to imprisonment for up to three months'.

Penalty notices

'Penalty notices are fines of L60-L120 imposed on parents. They are an alternative to the prosecution of parents for failing to ensure that their pupil of compulsory school age regularly attends the school where they are registered or at a place where alternative provision is provided. Every LA must draw up and publish a Code of Conduct for issuing penalty notices, after consulting all schools, including academies, and the police. The code should set out the criteria that will be used to trigger the use of a penalty notice. These could include: a number of unauthorised absences, perhaps within a rolling academic year; or one-off instances of irregular attendance, such as holidays taken during term-time without the school's permission'.


While there are a number of similarities, there are also many differences:

  • prosecution fines can be much higher and even result in imprisonment
  • prosecution is essentially for 'irregular' attendance rather than just for a 'one-off' example
  • PNs can be issued by a headteacher but only if the local code of conduct makes provision for this
  • there is no power for a parent to contest a PN other than not paying it. They can then argue in any subsequent prosecution that the defence criteria apply
  • only LAs can actually issue a summons or prosecute in the magistrates' court
  • unpaid prosecution fines can result in payment orders being imposed by the court
  • unpaid PNs can be withdrawn by the LA or can result in prosecution under the Education Act 1996.

The LA's expectations

It will be important for LAs to clarify their expectations to the schools. In practice it may be helpful to have two different procedures:

Long-term, intermittent or unauthorised absence

Where unauthorised absence is long-term, intermittent or persistent, and where parents have not responded to or failed to co-operate with all attempts to resolve it on a voluntary basis, such as a Parenting Contract or meetings with LA officers.

This might suggest that prosecution at the appropriate level of offence is more likely to be the best approach. The immediate imposition of a PN will simply introduce more delay while the LA waits a further 28 days to see if the parent chooses to pay it. Cases such as these should be identified and referred to the LA for a casework response through the Education Welfare Service or its equivalent under whatever arrangements are in place.

'One-off' unauthorised absence

Where the unauthorised absence is a 'one-off', such as a family holiday taken without approval, for a continuous period that meets the minimum criteria agreed in the Code of Conduct.

If there are no other attendance concerns and the pupil is now back in school, and if the headteacher wants to make a point about the leave having been taken without permission, this would be best addressed with a PN. A first offence might result only in a warning or some other sanction such as additional work or denial of an award for otherwise good attendance. An ongoing casework response and referral is neither required nor appropriate.

Unpaid PNs

Confusion sometimes arises from the fact that the LA is supposed to prosecute if the PN is not paid. The evidence is the original period of unauthorised absence, not the non-payment itself. This may mean that LA legal advisors raise questions about whether there is sufficient absence to warrant the proceedings, given that, as indicated by the DfE above, they have to 'consider' national guidance on when such action is fair and proportionate. This needs to be clarified in local procedures to avoid unpaid PNs then being ignored.


Use the following item in the Toolkit to help you put the ideas in this article into practice:

About the author

Ben Whitney is an independent education welfare consultant and trainer, with over 20 years' experience in attendance management for two local authorities. He has written several books, his latest being Just Ticking the Box? Refocusing school attendance. More information on his current training and consultancy services can be found at

First published on this website in September 2014.

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