School’s out?

Morris Hill, Weightmans, Leicester

There was extensive press coverage of the High Court decision of 13 May 2016 in favour of Jon Platt in his long-running battle with Isle of Wight Council. Mr Platt took his daughter out of school for seven days in April 2015 for a family holiday when no other dates were available. He was fined for her unauthorised absence and, when he did not pay, was prosecuted. Section 444 of the Education Act 1996 requires parents to ensure that their child attends school regularly but the Act does not define what ‘regularly’ means. The magistrates’ court found that there was no case to answer against Mr Platt and this decision was upheld by the High Court on the basis that Mr Platt’s daughter’s attendance for the whole of the school year was more than 92 per cent, so in the wider context she had attended school regularly.

The interesting point about this case is the debate about the exact meaning of regular attendance. All that the High Court has said is that the overall level of attendance can be looked at in the context of the absence. What that means for parents and schools, though, is that every case will need to be looked at individually when trying to decide whether the child’s overall attendance has been regular.

Parents’ groups have complained for many years about the high cost of holidays during school vacations, compared with other times. However, the government says that its evidence suggests that every extra day of school missed can affect a pupil’s chance of gaining good GCSEs, which has a lasting effect on their life chances. Its stance since the High Court decision has, if anything, hardened. The initial response from Schools Minister Nick Gibb was that he was awaiting the judgment, after which he would set out the government’s response. He also noted that the ruling was ‘a significant threat to one of the government’s most important achievements over the last six years: improving school attendance. For this reason, the government will do everything in its power to ensure head teachers are able to keep children in school.’

Mr Gibb also urged schools and academies to club together and change their term and holiday dates. His solution to beat the travel agents appeared to lie with the schools themselves, rather than the parents. It remains to be seen whether they will heed his call. The press has been trumpeting a victory for common sense. However, many suspect that although Mr Platt had won that particular battle, his war against the council, or perhaps the government, was far from over.

This has indeed proved to be the case because there have been two related developments. First, the council indicated its intention to appeal against the High Court’s decision. Second, the Schools Minister has instructed schools effectively to ignore the High Court ruling and continue to apply the existing regulations which provide for parents to be fined in the event of the unauthorised absence of their children.

The fact that the decision is being appealed is not surprising given the government’s initial response and the fact that they introduced stricter rules on term-time absences in 2013. These rules provided that head teachers could only authorise such absences in exceptional circumstances. Prior to this, headteachers had discretionary powers to grant up to two weeks of absence for pupils who otherwise had good attendance records.

The government’s involvement is clear and unequivocal. A spokesperson for Isle of Wight Council was quoted as saying that they had received a formal request from the government to lodge the appeal against the High Court decision. Their initial instincts had been not to do so in view of the additional expenditure and limited council funds that an appeal would have required. However, the council leader has confirmed the government’s formal request, due to the local and national importance of the issue at the heart of the case – what constitutes regular attendance. As the Department for Education has committed to cover all the costs of the appeal and to make a contribution to the costs that the council has already incurred, an appeal has indeed been lodged.

Mr Platt, who has been reported as having set up a company called School Fines Refunds Limited to assist parents who have paid fines in similar circumstances to reclaim the money, described himself as shocked at the council’s decision to appeal.

As for the government, the Schools Minister has confirmed that the response to parents asking local authorities to rescind any penalties paid in such circumstances is a refusal. Notwithstanding the appeal, he also confirmed that the government would set out any additional steps that were necessary to secure children’s attendance at school in due course.

Mr Platt may have been surprised that the government intends to continue to fight this particular war, but many of us would have been even more surprised had they not done so. The battle is clearly set to continue and the outcome of the forthcoming appeal will be keenly awaited by all involved.