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Since the outbreak of the COVID-19 pandemic, significant numbers of pupils have been absent from school. As is to be expected, many of these absences are due to children either catching the virus themselves or being identified as a “close contact” of someone who has. Other absences, however, have arisen as a result of fears or a general reluctance on the part of pupils (or their parents) about returning to school, or where international pupils are unwilling or unable to return to the UK. There are also scores of “unexplained” absences – where no (satisfactory) reason has been given for the pupil’s failure to attend school.

School attendance remains mandatory for all pupils of compulsory school age and the Department for Education has made it clear that face-to-face education is a top priority for children’s education and wider development and wellbeing. Nevertheless, is estimated that between 80,000 to 100,000 children are no longer on any school roll, and attendance levels across the board are down by nearly 10 per cent[1].

Independent schools have traditionally enjoyed high levels of attendance and very little issues with absence or children missing in education. Of course, most parents will not want to be paying school fees if their children are not attending school. However, during the pandemic, attendance rates in the independent sector have also declined.

In light of the impact that the pandemic and national lockdowns have had on school attendance, the Children’s Commissioner for England announced last month that an inquiry will be launched into children who are not attending school, with the Commissioner declaring “literally, I am going to go out and find them”[2]. The Education Secretary has also announced that the Department for Education will shortly be launching a consultation on managing school absences. The Education Secretary has said the new plans would end “the postcode lottery of how attendance is managed”[3].

As this is an area that is coming under increased scrutiny, independent schools will need to be mindful of their legal responsibilities and duty of care to their pupils. In this article, we look at some frequently asked questions about independent schools’ obligations and responsibilities when it comes to pupil attendance.

1. What are our obligations when it comes to recording and reporting pupil attendance?

Parents, schools and local authorities each have an important role to play in a child’s education:

  • parents have a duty to ensure that, where their child is of compulsory school age, they receive an education and, if their child is registered as a pupil at a school, that they regularly attend school;

  • schools are responsible for educating those pupils, recording their attendance and following-up on their absences; and

  • local authorities must put in place arrangements to identify and safeguard children who are at risk of missing education.

All schools must maintain an Admission Register and (with the exception of boarding schools who do not have any day-pupils) all schools must also maintain an Attendance Register.

Admission Register

The Admission Register must contain a list of all the pupils registered at the school, including key details such as their name, date of birth, address, date of admission and the names and addresses of their parents.

Attendance Register

Schools have a legal duty to take an Attendance Register every morning and afternoon. It should record whether each pupil is:

  • present;

  • absent;

  • attending an approved educational activity;

  • unable to attend due to “exceptional circumstances”. The definition of “exceptional circumstances” is narrowly defined as circumstances in which the school site (or part of it) is closed due to an “unavoidable cause” or, in the case of a pupil who does not live within walking distance of the school and for whom transport to school is provided by the school or local authority, that transport is not available; or

  • not attending in circumstances relating to coronavirus. This only covers absences prohibited by guidance or law (ie where the child is required to isolate because they have tested positive for coronavirus). It does not cover self-isolation as a result of being a “close contact” or any other COVID-related absences.

2. What is the difference between an authorised and unauthorised absence?

When a pupil is absent from school, that absence must be recorded as either authorised or unauthorised.

A pupil’s absence must be authorised if:

  • they have been granted a leave of absence by the school (more on which below);

  • they are unable to attend because they are sick or due to some other unavoidable cause;

  • they are observing a religious holiday; or

  • the school is not within walking distance of the pupil’s home and no suitable arrangements have been made for their transport to / from the school.

The regulations on school attendance require the school to authorise absence in the above circumstances. It is understood from the statutory guidance that schools have discretion to authorise absence in other circumstances.

A pupil’s absence will be unauthorised if:

  • no reason is given for the pupil’s absence; or

  • the school is not satisfied with the reason(s) given for the absence.

Where a pupil is absent without permission (ie unauthorised) for a continuous period of 10 days or more, the school must report this to the local authority in line with their regular reporting cycles.

3. Are there new rules on attendance reporting as a result of the COVID-19 pandemic?

Since the easing of restrictions, and given the emphasis on mandatory education for children of compulsory school age:

  • remote learning should be restricted to children who are self-isolating because they have tested positive for COVID-19. It does not need to be, and arguably should not on a long-term basis be, extended or made available to children who are “close contacts”, children who are reluctant to return (or whose parents are reluctant for them to return), or to other children not in school;

  • schools must continue to maintain the Attendance Register using the new “Code X” for absences related to COVID-19 only where a child has tested positive for COVID-19;

  • schools will need to decide whether to authorise other COVID-related absences on a case-by-case basis (more on which below).

4. What about overseas pupils who cannot return to school because of travel restrictions?

Since 4 October 2021, the UK has removed the red / amber / green “traffic light” system and replaced it with an alternative system which reduces COVID-19-related entry requirements but retains a “red list”. At the time of writing, there are currently no countries on the “red list”. As a result, there are no pupils who are legally required to quarantine on arrival to the UK. Accordingly, it is expected that all overseas pupils should have returned to the UK to resume their education – or at least have clear plans to do so. Schools should be actively engaging with all pupils who are currently learning overseas to establish a plan for their return.

It is of course acknowledged that certain countries do still have strict quarantine policies which can impact on pupils’ ability to travel freely. These should be discussed on a case-by-case basis, bearing in mind the age of the child, their ability to travel and the severity of the restrictions in their home-country. 

The Government’s latest guidance states that schools should maintain their capacity to deliver remote education for pupils who are abroad. However, this is not intended to apply to pupils who are voluntarily learning overseas on a long-term basis.

5. What should we do if a pupil’s parents are reluctant for them to attend school, or the pupil persistently fails to attend school?

The school’s approach to engaging with the pupil and their parents in such circumstances will inevitably depend on the particular facts surrounding and motivations underpinning the pupil’s absence and schools should therefore take particular care to adapt and tailor their correspondence and interactions with parents as appropriate.

In most cases, the first step will be to set up a call or a meeting with the parents to give them an opportunity to identify their (or their child’s) specific concerns. The school can then explain the steps it has and / or will take to address those concerns and look to agree a way forward with the parents. Schools should of course be mindful of their obligations under the Equality Act 2010 to pupils whose reason(s) for absence are related to their own or their parent’s disability.

In any event, it is important that schools are clear with parents, from the outset, about their respective obligations to ensure that the child receives a formal education. School should also be clear about their statutory reporting obligations if the child fails to regularly attend school and their absence is unauthorised (ie the school will report unauthorised absences of 10 days or more to the local authority).

If, after the initial meeting, the parents are still reluctant for their child to attend school, or if their child continues to be absent from school, then you should seek advice about how to escalate the matter.

Throughout this process, schools should be mindful of the Government’s statutory guidance Keeping Children Safe in Education (available here) – particularly when making arrangements to safeguard and promote the welfare of their pupils. This guidance provides for appropriate safeguarding responses to be put in place for children who are missing from school, particularly on repeat occasions.

6. Should we grant a long-term leave of absence?

The Education (Pupil Registration) (England) (Amendment) Regulations 2013 provide that a leave of absence should only be granted where:

“an application has been made in advance to the proprietor by a parent with whom the pupil normally resides” and “the proprietor, or a person authorised by the proprietor [….] considers that application should be granted due to the exceptional circumstances relating to that application”.

The “proprietor” for the purposes of these Regulations is the Head Teacher.

Crucially, there is no legal definition of what constitutes an “exceptional circumstance”. Ultimately, this will be for the Head to decide. The Head may also determine the length of the leave of absence, as well as whether the absence is authorised.

It is important to note that this part of the regulations is stated as only applying to maintained schools. There is therefore an argument that independent schools have greater flexibility to grant a leave of absence. Nevertheless, before granting leave it would be advisable to seek advice and, in some circumstances, confirm your proposed approach with your local education authority.

7. When can a pupil’s name be deleted from the Admission Register?

Regulation 8 of The Education (Pupil Registration) (England) Regulations 2006 provides for a series of grounds on which a pupil’s name may be deleted from the Admission Register.

All schools must notify the local authority when a pupil’s name is to be deleted from the Admission Register under any of these grounds, as soon as the ground for removal is met and no later than the time when the pupil’s name is removed from the register. (This does not apply where the pupil’s name is removed after they have completed the school’s final year, ie at the normal leaving date).

The key grounds – which are most likely to be used in practice – are as follows:

  • the pupil has been registered at another school;
  • the pupil has ceased to attend the school and the school has received written notification from the parent(s) that the pupil is receiving education otherwise than at school (ie the child is being home schooled) ;
  • the pupil has been continuously absent from the school for a period of not less than twenty school days but only where both the school and the local authority don’t know where the child is, having made reasonable enquiries;
  • the pupil has ceased to be a pupil of the school; or
  • the pupil has been permanently excluded from the school.

Footnotes

[1] BBC News "Covid in schools", see here

[2] BBC News "Covid in schools", see here

[3] BBC News "One in eight pupils out of school as Covid worsens", see here

If you require further information about anything covered in this briefing, please contact Paul Jones, Jeremy Isaacson, Genna Morgan-McDermott or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, February 2022

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