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Case Summary: The Supreme Court clarifies the meaning of "regularly"

06-April-2017
06-April-2017 19:22
in Aviation and Travel
by Helen McAteer

Judgement was handed down in Isle of Wight Council v Platt [2017] UKSC 28 (available here). The Supreme Court provided guidance on what ‘failed to attend regularly’ meant in the context of the offence contrary to section 444(1) of the Education Act 1996.

The facts

On 30 January 2015, Mr Platt, the father of a child, (‘Mary’), sent a letter to the school attended by the child requesting Mary to be absent during term time. This was for the period between 12 April and 21 April 2015. On 9 February 2015, the head teacher refused the request. Coincidentally, Mary’s mother, who had been separated from Mr Platt, had also taken Mary on holiday in February 2015, which had not been authorised by the school either.

Mr Platt went ahead and took Mary to Disney World in Florida regardless. Accordingly, the council issued Mr Platt with a fixed penalty notice under the Education Act 1996. As this fine had not been paid within the requisite 21-day deadline, the fine increased to £120. This went unpaid too. Mr Platt was charged with an offence contrary to section 444(1) of the Education Act 1996. On 12 October 2015, a trial took place where the Magistrates determined that Mr Platt had no case to answer. They reasoned that ‘we have to ask ourselves whether M was a regular attender. Before 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. The High Court held that 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. (see our post on the High Court decision here.)

The Supreme Court decision

Lady Hale explained that the High Court certified a different point of law, namely under section 1 of the Administration of Justice 1960 what information is relevant to the specific period complained off when assessing whether an offence had been committed under section 444(1) of the 1996 Act.

In considering what ‘regular’ meant, Lady Hale considered that the three possible meanings interpretations. These were:

  1. At regular intervals.
  2. Sufficiently frequently.
  3. In accordance with the rules.

In regard to ‘regular’ meaning attendance ‘at regular intervals’ was discarded as a possible interpretation, as this would have enabled a child’s attendance to be regular even if he was regularly late.

In regard to ‘sufficiently frequently’, the court considered that this interpretation accorded with what was meant when one talked of being a ‘regular’ at the pub or a ‘regular’ church. Attendance regularly could not be construed in this way. This was because the purpose of the Education Act 1996 was to increase the scope and character of compulsory state education. Lady Hale further reasoned that the 1994 Act sought to tighten not to relax parental liability. Most significantly, this interpretation would not have been sufficiently certain to found a criminal offence.

The court determined that ‘in accordance with the rules’ was the correct interpretation. This was because, while a minor or trivial breach of the rules could lead to criminal liability, this could be countenanced by a sensible prosecution policy. Further, as statutes imposing criminal liability should be drafted so that everyone knew where they stood this was the only interpretation that would achieve this.

The court therefore concluded that regularly in the context of offence meant ‘in accordance with the rules prescribed by the school’.

The decision will shift the attention on the attendance rules and policies of schools. This may result in an increase in judicial review claims.

Fact is that the now Mr Platt will be re issued with a summons to appear at the Magistrates Court and the entire process begins. As regards Mary’s mother, she had decided to pay the fixed penalty fine at the time it was issued.

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