School Penalty Fines and Authorised Absence

Nick Gibb Excerpts

Monday 11th July 2016 Westminster Hall

[Steve Double (St Austell and Newquay) (Con)]

I beg to move,

That this House has considered e-petition 129698 relating to school penalty fines and authorised absence from school.

It is a pleasure to serve under your chairmanship, Mr Hanson, and a privilege again to have the opportunity to debate this subject, which looks like it is simply not going to go away. It is evident that parents from all around the country feel strongly, which is why we get to debate it again. We are here as a result of the online petition titled, “No more school penalty fines and bring back the 10 day authorised absence”, which has received more than 200,000 signatures to date. I am sure that we are all clear on the background, but let me put on the record that the petition states:

“Back in 2013 the government changed the law on taking your children out of school in term time so that now you receive a penalty fine of £60 per child”,

which can increase if the fine is not paid within a certain time.

Before the change in the law, which was passed by way of a statutory instrument and without the impact assessments being considered, headteachers had the discretion to allow up to 10 days off for pupils in special circumstances. That approach was rooted in common sense: teachers know the pupils, know the families they come from and know the communities that they are a part of. Sadly, we now have a Big Brother blanket ban on all family holidays in term time that gives the message that the state knows better than parents what is right for their children.

As we know, the rule was turned on its head by a recent court ruling, which judged that it was unlawful to fine parents for taking their children out of school when their children are regularly attending school. Confusion now reigns. We recently heard from Devon County Council that, until the details of the new law are made clear, it has suspended issuing any new penalty notices and cases to be heard in court will be adjourned. Cornwall Council has apparently been accused of going soft on fining parents. Although I welcome the decisions that these two south-west councils have taken, for the sake of fairness and clarity, schools and parents across England need to know where they stand.

Mr Russell Hobby, the general secretary of the school leaders’ union, the National Association of Headteachers, stated that, as we approach the holiday season, the recent ruling had

“created confusion for schools and parents”

and that

“the system of fines is clearly too blunt an instrument and in many cases it drives a wedge between schools and families.”

Swift action is needed to clarify the position for families, schools and all concerned.

The Minister knows that I care deeply about this—we have discussed and debated it before—partly because of the negative effect on the people of my constituency in Cornwall. I have made that case and spoken about the impact on the tourist industry many times before. I do not intend to repeat those arguments, but I want to address what I believe are some of the key arguments and some of the points that parents up and down the country feel very strongly about. I believe that we need to return to a policy that brings back common sense and a degree of flexibility.

I believe that the policy devalues the place of the family. The Government do not know what is best for my or anyone else’s children. Every child is unique and every family is different. This one-size-fits-all blanket ban does not allow for the uniqueness of every child and every family. It is not the Government’s role to tell parents what is best for their children.

[The Minister for Schools (Mr Nick Gibb)]

Does my hon. Friend accept that it is the Government’s role to say that education should be compulsory from the age of five to 16?

[Steve Double]

I thank the Minister for that intervention. Of course I agree with him that we value compulsory education in this country and that it has a very important part to play. However, compulsory education does not happen only in the classroom—it does not mean that children should be stopped from taking a family holiday, which, I would argue, has an equally important role in their upbringing.

One parent who was fined for taking his child to a sporting world championship that a family member was competing in wrote these words to me:

“The notion that a state official can criminally enforce their perspective on which family members are important to a child is very disturbing coming from a democratic government…By focusing on what is an ‘exceptional circumstance’, and trying to eliminate cheap holidays, the law has sent schools down the path of criminally enforcing ethics, family values, the intimate details of children’s lives and relationships, without any qualifications or regard for academics, the wellbeing of the child, or the integrity and dignity of the family structure.”

--- Later in debate ---

[Peter Heaton-Jones]

Absolutely. Many businesses in such resorts find themselves in that position. That feeds back into the point I made earlier: because the season is now so focused, families who run tourism businesses in my constituency and that of my hon. Friend have no choice. There is no way they can possibly go on holiday during the school holidays, so they have to request to take their children out of school, otherwise they will not be able to enjoy a holiday.

It is absolutely right that the Government have a duty to ensure that children have full academic attendance and a full school record. I am not arguing with that, but there must be some carrot and some stick. My fear is that, with the 2013 guidelines, the balance has shifted rather too much towards the stick approach, which I do not think is valuable or helpful.

Let me go off script for a moment. I am a bit of an old-fashioned Tory sort of boy, and I like less government. I like smaller government. I like government that does not just sit in Westminster bringing a clunking fist down rather hard on parents, families and working people who are just trying to do the right thing. I have an uneasy sense that the current regulation and policy are on the wrong side of that. I passionately believe that, as a Conservative Government, we should be helping hard-working people who occasionally have no choice but to take their children out of school. As in the case of my constituents, Mr and Mrs Short, they might do so not for a holiday but for a perfectly reasonable sporting endeavour. I am not sure how we have reached the point where, as a Government, we are saying, “We, centrally, know better than you.”

[Mr Gibb]

This debate boils down to two phrases: “in special circumstances” and “in exceptional circumstances”. It is about the difference between the words “special” and “exceptional”, so the way my hon. Friend is describing matters exaggerates the issue. Even he believes that headteachers should grant term-time holidays not in all circumstances but in special circumstances. The Government believe that they should be granted only in exceptional circumstances.

[Peter Heaton-Jones]

I thank the Minister for his views. I shall simply say this: at the moment, we are in a mess. Teachers, headteachers, schools and parents do not know where they stand. I take his point, which is perfectly reasonable. I do not agree that I am exaggerating the situation, though, because I have been on the receiving end—as I am sure other hon. Members have—of hundreds of emails, letters and phone calls from parents and headteachers who are deeply worried about the position in which they now find themselves. That is not an exaggeration.

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[Mr Gibb]

Could my hon. Friend define what he means by “good” in that circumstance, and will he confirm that it is the level that the hon. Member for Nottingham South (Lilian Greenwood) referred to as one day a fortnight?

[Mr Turner]

No. Mr Platt used the term “good” to describe his child attending school all-year round except for a fortnight, which is not the same as one day a fortnight, and there was no evidence from any quarter to question that description.

Isle of Wight Council wanted a different interpretation of the law and so it took Mr Platt’s case to the High Court. The High Court found that it was not acceptable for the authority

“to criminalise every unauthorised holiday by the simple device of alleging…that there has been no regular attendance in a period limited to the absence on holiday.”

The judgment said that regular attendance must be measured over a longer period of time, and Mr Platt’s daughter’s attendance record was satisfactory in that respect.

The High Court’s judgment did not find favour with either Isle of Wight Council or the Department for Education. The Department has now provided the council with funding and legal support to take the case to the Supreme Court. Mr Platt is being given no such help; he is fighting this battle using private resources and not public money. The state is throwing the book at him for daring to stand up to the authorities and being found right—not once, but twice. So this is a real David and Goliath situation.

I am a former teacher and both my parents were teachers, too, so I understand the importance and value of education. I have experienced at first hand the difficulties of teaching a class where not all the children are in the classroom full-time. However, I have also seen the immense value of family holidays, in educational and other terms.

I have listened to the Government’s argument about the relationship between attendance and attainment. It exists, but it is not a simple picture. As the latest research from the Department itself says:

“There are a range of pupil, school, parental and societal characteristics that are likely to affect attainment in varying degrees.”

It is the interplay of factors that cannot be judged in Whitehall. Schools can collaborate with parents to ensure that a child’s education will be enriched by a family holiday and of course the child can be set work to be completed while they are away.

However, if the headteacher cannot justify that the holiday is being taken in “exceptional circumstances”, then parents can be criminalised under legislation introduced by statutory instrument in 2013. For many years, parents have been legally responsible for their child’s regular attendance at school, and headteachers are accountable for the performance of their school and their pupils. So it should be headteachers, working with parents, who decide whether or not to allow a family holiday, or any other kind of absence, after taking into account all the individual circumstances.

Before being elected to this House, I ran the Grant Maintained Schools Foundation and I am proud that this Government have taken forward the principle that we worked so hard to promote—greater autonomy and decision making in schools. So I find it incomprehensible why, on this particular issue, the Government insist that they know better than headteachers what is best for individual children.

There is a misconception that prior to 2013 parents had a right to take their children out of school for up to 10 days for a holiday. That was never the case. Headteachers were able to agree to a child being absent on a family holiday in “special circumstances”. It has been said, including by my right hon. Friend the Minister for Schools himself during a debate last October, that the 2013 amendments “clarified” the situation, but I disagree. A change from “special circumstances” to “exceptional circumstances” is a material difference, and it has given rise to markedly different approaches from local education authorities.

We now have a postcode lottery that determines whether a parent is prosecuted. For example, I understand that in the west country Cornwall has issued four “school fines” in the last three years, but Devon, which is just next door, has issued 1,386 such fines in the last year alone. The variation is great even among just primary schools on my island. In one school, the parents of 176 pupils received fines over three years, while another school did not issue any fines at all. That cannot have been the Government’s intention—or, if it was, they are not explaining it well.

--- Later in debate ---

[The Minister for Schools (Mr Nick Gibb)]

It is a pleasure to serve once again under your chairmanship, Mr Hanson. I welcome the response to the debate from the hon. Member for Ashton-under-Lyne (Angela Rayner). I predicted that she would make a formidable shadow Secretary of State, despite the odd circumstances of her appointment, and today she has reconfirmed my view. I welcome her support for the Government’s policy, particularly her support for the Government’s attitude to attendance. She clearly shares our concern that attendance is key.

The hon. Lady raised the example of a diagnosis of cancer as not being regarded as exceptional. I refer her and other Members taking part in the debate to the National Association of Head Teachers advice and guidance, which, at point 10, states:

“Families may need time together to recover from trauma or crisis.”

A cancer diagnosis is therefore regarded as an exceptional circumstance, and attending hospital or illness is of course a reason to authorise absence.

I thank my hon. Friend the Member for St Austell and Newquay (Steve Double) for leading this important debate. The subject is close to his heart—we debated the issues fairly recently on 19 May and also in an urgent question that he raised on the Floor of the House. The debate gives me the opportunity to restate the Government’s position on school attendance for parents, schools and local authorities, particularly as I know some parents and schools have been confused by the recent High Court judgment in the Isle of Wight term-time holiday case. I hope I can fulfil the request from the hon. Member for Ashton-under-Lyne to provide clarity on that. I am grateful to my hon. Friend the Member for North Devon (Peter Heaton-Jones) for his constructive approach and to other hon. Members who have taken part in the debate.

The e-petition states:

“No more school penalty fines and bring back the 10 day authorised absence.”

My hon. Friend the Member for St Austell and Newquay referred to the 200,000 people who signed the petition. We take that very seriously, but it is a small proportion of the parents of 8.4 million school-age children in this country. My hon. Friend the Member for North Devon said that he does not agree with the part of the petition that refers to bringing back the 10-day authorised absence—nor does my hon. Friend the Member for St Austell and Newquay, nor the Government today and nor the Government in 2013.

In 2013, the Government clarified the law to address what was a widespread misconception that parents were entitled to take their children on holiday during term time. No such entitlement has ever existed in law. Teachers and schools support the increased clarity. As anyone who works in schools knows, education is cumulative, and unauthorised absences have a significantly adverse effect on the child who is absent as they miss vital stepping stones towards understanding curriculum content. Unauthorised absences also damage the education of the rest of the class as teachers have to spend time trying to help the absent pupils catch up when they return. The Government clarified the law to ensure that headteachers retained the discretion to authorise a leave of absence by considering the merits of each request and deciding whether it qualifies as an exceptional circumstance. Children should not miss school unless the circumstances are genuinely exceptional.

I refer my hon. Friend the Member for North Devon to point 3 of the NAHT guidance:

“If an event can reasonably be scheduled outside of term time then it would not be normal to authorise absence.”

The converse is that, if an event cannot reasonably be scheduled outside of term time, such as a championship or a sporting event of high significance to the child or indeed to the country, then of course it would fall within point 3 of the guidance, although it is ultimately a matter for the discretion of the headteacher.

The regulatory changes that we introduced in 2013 have been very successful. Since their introduction, as the hon. Member for Ashton-under-Lyne said, the rate of absence due to term-time holidays has decreased by more than a third. The number of persistent absentees in England’s schools has dropped by more than 40%, from 433,000 in the academic year 2009-10 to 246,000 in 2014-15. Some 6.8 million days were lost due to authorised and unauthorised term-time holiday absence in the 2012-13 academic year. That fell to 4.1 million days in 2014-15—a drop of 2.7 million days—meaning more children sitting in more classrooms for more hours. That has been driven particularly by a drop in absence due to authorised term-time holidays, with only 3.4% of pupils missing at least one session due to authorised term-time holidays in 2014-15, down from 15.1% in 2012-13.

My hon. Friend the Member for St Austell and Newquay correctly cited statistics that showed that the rate of agreed term-time holidays is lower for persistent absentees than for other pupils: 0.5% due to family holidays by persistent absentees versus 1.9% for other pupils. However, the situation is reversed for unauthorised term-time holidays: 0.6% of all possible sessions missed for persistent absentees versus 0.3% for other pupils.

[Steve McCabe in the Chair]

The Government acknowledge that family holidays can be enriching experiences, but the school year is designed to give families numerous opportunities to enjoy holidays without having to disrupt children’s education. Parents should plan their holidays around school breaks and avoid seeking permission from schools to take their children out of school during term time unless there are exceptional circumstances. I recognise that the cost of holidays is a frustration that many parents share, and I certainly encourage travel operators to do what they can to provide value for money to families, but ultimately, in a competitive market in which British businesses are in competition with others across the globe, it is for those businesses to decide their prices based on demand across the year.

Tourism is a key industry that supports almost one in 10 jobs in the United Kingdom. That is why the Government are encouraging more visitors to discover more of our country, as set out in the five-point plan that the Prime Minister announced in July 2015. Holiday sales in the UK continue to be buoyant, suggesting that there is sufficient supply and strong demand. There were more than 124 million overnight domestic trips in Britain in 2015—a 9% rise on 2014 and the highest figure since 2012. The amount spent was also up 9% to £25 billion, a record £19.6 billion of which was spent in England.

If parents and schools want different term dates so they can take holidays at less busy periods, we encourage them to discuss that with their local authority. The authority to change term dates sits with academies, voluntary-aided schools and local authorities. Decisions about term dates are best taken locally, especially where the local industry—for example, tourism—creates a compelling reason to set term dates that differ from those of the rest of the country.

As of January 2016, about 81% of secondary and 41% of primary schools, educating 57% of all mainstream registered pupils, have the responsibility for their own term and holiday dates. That includes all academies and free schools, and other schools where the governing body is the employer of staff, such as foundation or voluntary-aided schools. Some of those schools have led the way in making innovative changes in the interests of pupils and parents.

[Steve Double]

I understand the point that the Minister is making about varying term times, but it presents real difficulties. For instance, a primary school in my constituency that the Prime Minister praised for changing its half-term dates had to revert back after two years because of the pressure on parents with children at other schools that did not change their term dates. It created more problems than it solved.

[Mr Gibb]

My hon. Friend raises a real, practical issue about having different term dates in different parts of the country. That is something that the local authority and academies have to take into account when they consider changing term dates to reflect an industry or tourist needs in a particular region. They will have to weigh up the comparative advantage of that inconvenience versus the convenience of the industry that supplies the jobs in that area. That is why the decision needs to be taken locally by people who know how to weigh up those advantages and challenges.

That happened, for example, in Landau Forte Academy in Derby, which has operated on a five-term year since 1992. Eight-week terms are followed by two-week breaks and a four-week summer holiday. The academy feels that a shorter summer holiday is particularly beneficial for pupils from low-income backgrounds, who might not otherwise receive any stimulating activities in the holidays. It takes into account the dates of other local schools to ensure there is always some overlap of holidays. For example, one of its two weeks in October is always half term for other Derby schools.

Bishop Bromscombe School in St Austell, for example, improved school attendance by moving to a two-week May and June half term that allows parents to holiday outside peak times—[Interruption.] I assume that that is the school that my hon. Friend was talking about. It has now reversed that decision. If I had been quicker, I would have omitted that paragraph from my response.[Laughter.] I could, I am sure, cite other examples from around the country of schools that have taken advantage of that freedom.

Our reforms have put teachers in charge of their classrooms and headteachers in charge of their schools. Many measures are available to improve school attendance. Only when all other strategies to improve attendance have failed should sanctions such as penalty notices or prosecution be used. Schools, local authorities and the police have been able to issue penalty notices for unauthorised school absence since September 2004. There were 151,000 penalty notices issued for unauthorised absence in the 2014-15 academic year, up 54% from the 98,000 issued in 2013-14, indicating a continuation of the upward trend since 2009-10. The increase in 2014-15 was greater than the yearly increases prior to 2012-13, but it is lower than the increase of 88% between 2012-13 and 2013-14.

I believe it is right that local authorities and schools are actively addressing pupil absence. The impact of that can be seen in the historical downward trend in the absence figures, which show that, since 2009-10, almost 200,000 fewer pupils are persistently absent.

Although the Government are disappointed with the High Court judgment on school attendance, we are clear that children’s attendance at school is non-negotiable, and we will take the necessary steps to secure that principle. I recognise that the High Court judgment has created uncertainty for parents, schools and local authorities. Given its importance, it is essential that the matter is clarified, which is why we decided to support Isle of Wight Council’s request for permission to appeal to the Supreme Court, and why I wrote to all schools and local authorities in England to make it clear that the High Court judgment does not establish that a pupil’s attendance above 90% is regarded as regular attendance.

Headteachers are responsible for deciding whether there are exceptional circumstances that merit granting a pupil leave of absence. My letter concluded by explaining to local authorities receiving requests for refunds that the decision in the Isle of Wight case does not require them to refund penalties that have already been paid. The Department for Education expects applications for such refunds to be refused.

[Lilian Greenwood]

I agree that 90% does not constitute sufficiently regular attendance. Do the Government intend to amend the current legislation to define the term “regular” to give local authorities and schools the clarity that they are looking for?

[Mr Gibb]

The Government will set out our next steps in due course and will make an announcement. In the meantime, as I have said, I have written to local authorities and schools setting out the current position, notwithstanding the Isle of Wight case. We have supported the Isle of Wight’s decision to appeal to the Supreme Court. That is the Government’s position, but we will have more to say about next steps in due course.

The Government’s commitment to reduce overall school absence is part of our ambition to create a world-class education system. That cannot be achieved if children’s education is disrupted due to preventable absences. The evidence is clear: 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. That is why we take this issue so seriously.