Isle of Wight Council v Platt
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Neuberger,Lord Mance,Lord Reed,Lord Hughes |
| Judgment Date | 06 April 2017 |
| Neutral Citation | [2017] UKSC 28 |
| Date | 06 April 2017 |
| Court | Supreme Court |
[2017] UKSC 28
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Reed
Lord Hughes
Appellant
Martin Chamberlain QC
Ms Emily MacKenzie
(Instructed by Sharpe Pritchard LLP, as agent for Isle of Wight Council Legal Services)
Respondent
Clive Sheldon QC
Paul Greatorex
(Instructed by Roach Pittis)
Intervener (Secretary of State for Education)
James Eadie QC
Louis Mably
(Instructed by The Government Legal Department)
Heard on 31 January 2017
(with whom Lord Neuberger, Lord Mance, Lord ReedandLord Hughesagree)
This case is all about the meaning of the word "regularly" when describing the attendance of a child at school. Under section 444(1) of the Education Act 1996, if a child of compulsory school age "fails to attend regularly" at the school where he is a registered pupil, his parent is guilty of an offence. There are at least three possible meanings of "regularly" in that provision: (a) evenly spaced, as in "he attends Church regularly every Sunday"; (b) sufficiently often, as in "he attends Church regularly, almost every week"; or (c) in accordance with the rules, as in "he attends Church when he is required to do so". When does a pupil fail to attend school regularly? Is it sufficient if she turns up regularly every Wednesday, or if she attends over 90% of the days when she is required to do so, or does she have to attend on every day when she is required to do so, unless she has permission to be absent or some other recognised excuse?
The respondent is the father of a child whom I shall call Mary, who is now aged nearly eight and three quarters, but was aged nearly seven at the relevant time. Her parents are separated and she lives roughly half the time with each of them. She is a registered pupil at a primary school on the Isle of Wight. On 30 January 2015, her father sent her head teacher a form entitled "Request to remove a child from education during term time", with a covering letter seeking permission to take Mary out of school for a holiday from 12 to 21 April 2015. On 9 February, the head teacher replied refusing the request and warning that a fixed penalty notice would be issued if Mary was taken on holiday.
Coincidentally, Mary's mother had taken her on a holiday which had not been authorised by the school for the week beginning the 9 February (five days, amounting to ten attendances). Neither, as it happens, had she sought the father's permission to take the holiday (although we do not know whether she was required by law to do so). Mary's mother was issued with a penalty notice by the school which she had paid.
Despite the head teacher's refusal of permission, Mary's father took her out of school from 13 to 21 April (for seven school days, amounting to 14 attendances). On 29 April, the head teacher sent a Fixed Penalty Notice Referral Form to the Council's Education Welfare Officer (EWO). The reason given for believing that a penalty notice was appropriate was "unauthorised family holiday during term time". The EWO checked that the Council's Code of Conduct had been complied with and authorised the issue of the notice, which was done on 14 May. This required the father to pay £60 by 4 June 2015. He did not do so. Accordingly, that day he was sent a further invoice requiring him to pay £120 by 10 June 2015. He did not do so.
On 1 July, he was sent a letter before action, advising him that the EWO was preparing to prosecute him. He responded by email and telephone call to explain the reason for the absence. The EWO replied that the penalty notice had been correctly issued and the matter would now proceed to prosecution. Proceedings were duly brought in the Isle of Wight Magistrates' Court, alleging that Mary had failed to attend school regularly between 13 and 21 April and that as her parent he was guilty of an offence under section 444(1) of the Education Act 1996. He pleaded not guilty.
The trial took place on 12 October 2015. At the close of the prosecution's case, the magistrates ruled that there was no case to answer. As they explained, "the question we have to ask ourselves is whether [M] was a regular attender. Before the holiday with Dad, her attendance was 95%. Afterwards it was 90.3%. … The document supplied on refusal of leave stated that satisfactory attendance is 90–95%". The Council appealed by way of case stated. In their case stated, the Magistrates certified the following question for consideration by the High Court:
"Did we err in law in taking into account attendance outside of the offence dates (13th April to 21st April 2015) as particularised in the summons when determining the percentage attendance of the child?"
On 13 May 2016, a Divisional Court of the Queen's Bench Division answered that question in the negative: the magistrates had not erred in taking into account the child's attendance outside the absent dates in determining the percentage attendance of the child. On 30 June 2016, the Divisional Court certified a slightly different point of law of general public importance, pursuant to section 1 of the Administration of Justice Act 1960:
"Whether, on an information alleging a failure by a parent over a specified period to secure that his child attends school regularly contrary to section 444(1) of the 1996 Act, the child's attendance outside the specified period is relevant to the question whether the offence has been committed."
Thus the magistrates had assumed that they were required to determine the percentage attendance of the child. The question certified by the Divisional Court makes no such assumption. The essential question for this court is the meaning of "fails to attend regularly" in section 444(1) of the Education Act 1996.
We have been given an account of the history of the law leading up to section 444(1) of the 1996 Act which is interesting as well as instructive. During the early 19th century, the Church of England, the Methodist Church and other Churches set up many elementary schools, but attendance was not compulsory and the state had no obligation to provide universal elementary education. The Elementary Education Act 1870 (Vict 33 & 34, c 75) by section 5 required there to be provided in every school district "sufficient amount of accommodation in public elementary schools" for all the children resident in the district "for whose elementary education efficient and suitable provision is not otherwise made".
However, the 1870 Act did not insist that attendance be made compulsory everywhere. This was politically controversial. There was concern about the practicality of compelling the attendance of children whose parents moved frequently in search of work and even more concern about the justice of depriving parents of the earnings of their children while imposing the costs of school attendance upon them. Instead, therefore, section 74 of the 1870 Act empowered each school board, with the approval of the Secretary of State, to make bye-laws (1) requiring parents of children of specified ages (between five and 12 inclusive) to cause them to attend school, unless there was some reasonable excuse, (2) fixing the times when children were required to attend school, with two exceptions, one of which was for "any day exclusively set apart for religious observance by the religious body to which his parent belongs", and (4) imposing penalties for breach. There was a list of reasonable excuses (held to be non-exclusive in London County Council v Maher [1929] 2 KB 97): (1) that the child is under efficient instruction in some other manner; (2) that the child has been prevented from attending school by sickness or any unavoidable cause; and (3) that there was no public elementary school within what was thought to be a reasonable walking distance of the child's home, with a maximum of three miles.
Only a minority of school boards made such bye-laws. However, the climate of opinion soon changed. The Elementary Education Act 1876 (39 & 40 Vict, c 79) prohibited the employment of children under ten, and of children between ten and 13 who had not attained an appropriate standard of education (section 5), and for the first time imposed upon parents a duty to cause their children "to receive efficient elementary instruction in reading, writing and arithmetic" (section 4). If a parent habitually and without reasonable excuse neglected to do this, the local authority was under a duty to apply to court for an order requiring the child's attendance at a specified school. Thus such a parent might not only be prosecuted for a breach of the bye-laws but also have the education of his child taken out of his hands. This was followed up by section 2 of the Elementary Education Act 1880 (43 & 44 Vict, 23), which required all school boards to introduce bye-laws to compel attendance, although they could still set the times at which attendance was required.
We have been shown a sample of these local byelaws. They made it a criminal offence for a parent to fail to cause his child of school age to attend school, unless there was a reasonable excuse. Many fixed the time when attendance was required at "the whole time for which the school selected shall be open for the instruction of children of a similar age". Some fixed the number of days for which older children were required to attend, varying with the seasons, presumably in order to allow them to take time off for seasonal agricultural work.
The school leaving age was raised to 14 by the Education Act 1918 (8 & 9 Geo 5, c 39). The Education Act 1921 consolidated the earlier legislation, with its three basic features: the parental duty to cause their children to be efficiently educated...
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