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Prosecution for children not attending school ** Court June 2017 **

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Hi,

 

My brother is being summonsed to appear at Magistrates Court in June for not sending his two kids to school regularly.

 

The School count the attendants twice a day and they are claiming that out of 154 possible attendances only 130 were attended which works out to 12 days (154 - 130 = 24 / 2 = 12

 

For each of the days, the council demanded a penalty fee of which was not paid as i advised my brother that they had no legal bases within the Education Act 1996 to charge such fees.

 

Out of the 12 unattended days of which penalty notices were issued the council later withdraw them and sent a letter to my brother stating that after reviewing the evidence submitted by my brother that the penalty notices should not have been issued.

 

The school had to be closed for a total of 5 days due to mice infestation in the schools kitchen. now my brother is stating that on both times of the school being closed a day or so before his kids were not well "being sick" 1st time for 4 days and the second time for 1 day (30 Nov and 13th Jan) the school was closed. they said the schools closure is not included in the attendance rating.

 

they claim that the attendance level was 84%

 

The council are saying that if they win the case, they are going to be asking for costs.

 

The case is being tried under 444(1) of the Education Act 1996 http://www.legislation.gov.uk/ukpga/1996/56/section/444

444 Offence: failure to secure regular attendance at school of registered pupil.

 

(1)If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.

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Now looking at section 3 of the act.

 

I feel my brother could use some of this to further reduce the 12 days to zero

 

Section B) - 12 Days - if that fails then

Section 4 (a/b)

 

(3)The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school—

 

(a)with leave,

 

(b)at any time when he was prevented from attending by reason of sickness or any unavoidable cause, or

 

©on any day exclusively set apart for religious observance by the religious body to which his parent belongs.

 

(4)The child shall not be taken to have failed to attend regularly at the school if the parent proves—

 

(a)that the school at which the child is a registered pupil is not within walking distance of the child’s home, and

 

(b)that no suitable arrangements have been made by the local education authority F2. . . for any of the following—

 

(i)his transport to and from the school,

 

(ii)boarding accommodation for him at or near the school, or

 

(iii)enabling him to become a registered pupil at a school nearer to his home.

 

 

With Regards to the Council claiming costs for brining the case. I don't see this listed within the act

 

A person guilty of an offence under [F3subsection (1)] is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

 

[F4(8A)A person guilty of an offence under subsection (1A) is liable on summary conviction—

 

(a)to a fine not exceeding level 4 on the standard scale, or

 

(b)to imprisonment for a term not exceeding three months,

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Based upon the evidence submitted by the school they have admitted to sending the Penalty Notices for failing to send the kids to school

 

The Education Act 1996 does not give the Council or School the power to issue fines, the act states "A person guilty of an offence under [F3subsection (1)] is liable on summary conviction"

 

I wonder if Section 2 of the Fraud Act would put the Council in a very weak case?

http://www.legislation.gov.uk/ukpga/2006/35/section/2

 

(1)A person is in breach of this section if he—

 

(a)dishonestly makes a false representation, and

 

(b)intends, by making the representation—

 

(i)to make a gain for himself or another, or

 

(ii)to cause loss to another or to expose another to a risk of loss.

 

(2)A representation is false if—

 

(a)it is untrue or misleading, and

 

(b)the person making it knows that it is, or might be, untrue or misleading.

 

(3)“Representation” means any representation as to fact or law, including a representation as to the state of mind of—

 

(a)the person making the representation, or

 

(b)any other person.

 

(4)A representation may be express or implied.

 

(5)For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

I would argue that the Council are guilty of

(b)intends, by making the representation— (The Penalty Notice) (i)to make a gain for himself or another "The Council", or

(ii)to cause loss to another (My Brother) or to expose another to a risk of loss (My Brother).

 

 

(2)A representation is false if—

(a)it is untrue or misleading (the Education Act 1996 does not give any power to issue FPNs), and

(b)the person making it knows that it is, or might be, untrue or misleading.( Of couse, my brother sent a email to the council making them aware of this)

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The recent Supreme court case confirmed that the council can apply this penalty for non authorised attendence and it can be escalated to Magistrates to impose the penalties plus the councils costs.

 

I think it is best to avoid it going to court and to try to come to a resolution beforehand. Ask for a meeting with the council to run through all of the information to see what penalties are correctly due and to come to a payment arrangement. If there are questions about the school being closed or sickness not recorded properly, then these can be looked into.

 

If your Brother shows he is dealing with it and looking to the council to help, if the council then tries to continue to Magistrates then the conduct of the council can be mentioned.


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Based upon the evidence submitted by the school they have admitted to sending the Penalty Notices for failing to send the kids to school

 

The Education Act 1996 does not give the Council or School the power to issue fines, the act states "A person guilty of an offence under [F3subsection (1)] is liable on summary conviction"

 

I wonder if Section 2 of the Fraud Act would put the Council in a very weak case?

http://www.legislation.gov.uk/ukpga/2006/35/section/2

 

I would argue that the Council are guilty of

(b)intends, by making the representation— (The Penalty Notice) (i)to make a gain for himself or another "The Council", or

(ii)to cause loss to another (My Brother) or to expose another to a risk of loss (My Brother).

 

 

(2)A representation is false if—

(a)it is untrue or misleading (the Education Act 1996 does not give any power to issue FPNs), and

(b)the person making it knows that it is, or might be, untrue or misleading.( Of couse, my brother sent a email to the council making them aware of this)

 

 

How are you going to prove dishonest intent?

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I'm not saying your wrong but how can a Supreme Court issue a Judgement ruling based on something which is not listed in The Education Act 1996. He / She can not add to it what's not listed. Surely the act would need to be amended to allow FPNs?

 

The recent Supreme court case confirmed that the council can apply this penalty for non authorised attendence and it can be escalated to Magistrates to impose the penalties plus the councils costs.

 

I think it is best to avoid it going to court and to try to come to a resolution beforehand. Ask for a meeting with the council to run through all of the information to see what penalties are correctly due and to come to a payment arrangement. If there are questions about the school being closed or sickness not recorded properly, then these can be looked into.

 

If your Brother shows he is dealing with it and looking to the council to help, if the council then tries to continue to Magistrates then the conduct of the council can be mentioned.

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So to put my brother in a stronger case, try and arrange a meeting to discuss in detail the level of absences and see if they will agree to drop the case by an agreement to pay the FPNs

 

if that's the way to end this then OK, but to me that sounds like Section 2 of the fraud act yet again..

 

if its a meeting to discuss the level of attendance by way of discussing the issues which is causing the failed attendance fine, i would totally agree with that but to Agree to Pay the council a fee, i think is wrong.

 

If your Brother shows he is dealing with it and looking to the council to help, if the council then tries to continue to Magistrates then the conduct of the council can be mentioned.

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How are you going to prove dishonest intent?

 

By way of Letters being sent from the council even after giving them previous notice back in November last year of concerns of fraud due to The Eduction Act not giving power to issue FPNs and that if they repeatedly issued any more FPNS then action may be taken.

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By way of Letters being sent from the council even after giving them previous notice back in November last year of concerns of fraud due to The Eduction Act not giving power to issue FPNs and that if they repeatedly issued any more FPNS then action may be taken.

 

Say again?.

 

That doesn't prove dishonest intent. It just shows they disagree.

 

If they say "Oh, we honestly believed the Supreme Court's judgment allows us to issue to penalty", then it isn't dishonest

 

(It even isn't dishonest even if they are wrong ... as long as they didn't make the representation knowing it was wrong.

Are they wrong, though, bearing in mind the Supreme Court's judgment.....

 

If they aren't wrong and are allowed to issue the penalty, according to the Supreme Court's judgment; then it isn't

a) false, or

b) dishonest .......

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I'm not saying your wrong but how can a Supreme Court issue a Judgement ruling based on something which is not listed in The Education Act 1996. He / She can not add to it what's not listed. Surely the act would need to be amended to allow FPNs?

 

 

It's called 'statutory interpretation'.

 

The Government can amend the law to over rule the Supreme Court if they like but I can't see it being done with Brexit and everything else going on.

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Read the judgement https://www.supremecourt.uk/cases/docs/uksc-2016-0155-judgment.pdf

and http://www.legislation.gov.uk/ukpga/1996/56/part/VI/chapter/II/crossheading/school-attendance-offences-and-education-supervision-orders

 

Regarding the FPN's

 

21.

The penalty notice regime, as an alternative to immediate prosecution, is

contained in sections 444A and 444B, introduced by

section 23 of the Ant social Behaviour Act 2003. The details need not concern us,

 

I don't see 444A and 444B within http://www.legislation.gov.uk/ukpga/1996/56/part/VI/chapter/II/crossheading/school-attendance-offences-and-education-supervision-orders

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But that's not the act the FPN's were issued under. Education act

 

fpn.png

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444A and 444B were added into the Education Act by the Anti Social Behaviours Act though.

 

 

Plus the Supreme Court ruling says:

 

"21

The penalty notice regime, as an alternative to immediate prosecution, is contained in sections 444A and 444B, introduced by section 23 of the Anti-social Behaviour Act 2003. The details need not concern us, but the broad shape is that an “authorised officer” may issue such a notice where he has reason to believe that a person has committed an offence under section 444. The notice offers that person the opportunity of escaping liability to conviction for the offence by paying the prescribed penalty. If he does so within the prescribed time he cannot be prosecuted for the offence. The current penalty prescribed by the Education (Penalty Notices) (England) Regulations 2007 (SI 2007/1867) (as amended by SI 2012/1046 and SI 2013/757) is £60 if paid within 21 days or £120 if paid within seven days after that. If the person does not pay, he can of course be prosecuted for the original offence, as happened here. "

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