Dear Sir / Madam

I am writing this letter /email because I wanted to be sure that the school / local authority were aware of the implications of the decision of the High Court on May 13thin Isle of Wight Council v Platt [2016] EWHC 1283 (Admin). For the avoidance of any doubt the full judgment can be found at

At para 16 of the judgment the High Court says:

‘I do not consider that it is open to 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. If that were carried to its logical conclusion, it would be open to the authority to bring a prosecution under section 444(1) in respect of anunauthorised absence ….of one day by limiting the period of irregular attendance alleged in the information to that one day. On the appellant's case, there could be no answer to such a charge’.

Also at P 17:

MrJackson [for the IW Council] submits that any absence which is not covered by one of the exemptions in section 444 would mean that attendance is not regular attendance because it is not full-time. In this regard, he refers to the importance of full-time education and the damage to children's attainment which can be a consequence of non-attendance at school. We note that this was not the basis on which the case was put below. …….. More fundamentally, this is not what the statute says. Under section 444 anoffence is committed if a child does not attend school regularly. This court in[London Borough of Bromley v] Cconsidered that that was a question of fact and degree, a matter for judgement by the court. That decision ….is not strictly binding on this court, but it is persuasive authority and, in any case, in my view it is correct.

In short, the OVERALL attendance of my / ourchildren / child is what is important when considering whether a TPN should be issued, NOT whether there has been an unauthorised absence.

In the ‘Platt case’ the Magistrates considered the full academic year. They also looked at the attendance from the start of the academic year to the day after the holiday (21st April). On the full academic year the attendance was 93% and on the shorter period from the start of the school year to the day after the holiday it was calculated by the local authority in court to be 90.3%. The IW Magistrates concluded that Platt had ‘no case to answer’ to the allegation at those levels of attendance. The High Court, upon reviewing that decision on the 13th May, concluded that they were perfectly entitled to come to that decision.

You may be aware that the DfE / IW Council have made an application for permission to appeal this decision to the Supreme Court. It is by no means certain that permission will be granted but even if it is, unless and until the Supreme Court reverses the High Court, that judgment remains binding in law.

I am aware that The Schools Minister has released a statement to schools that has been reported in some elements of the media as him telling schools to ‘ignore the High Court’ on this issue. Mr Gibb has suggested that the Platt case is not binding authorityfor any assertion that 90% is ‘regular attendance’. That is a fair statement. But it is equally fair to say that it is very persuasive authority for that position. What the Platt case is unquestionably binding authority for is:

  1. The Local authority cannot secure a conviction by laying an information referring only to the holiday period;
  2. What constitutes ‘regular attendance’ is a matter of fact and degree for Magistrates and the issue for the High Court was whether the decision they made was one reasonably open to them. They concluded it was.
  3. The IW Council’s argument that ANY absence, however short, without lawful excuse, amounted to a criminal offence, was wrong in law;
  4. An unauthorised term time holiday MAY amount to a failure to attend regularly but it does NOT automatically follow. You must look at the wider attendance, (almost certainly the full academic year).
  5. The decision of the High Court in 2006 (London Borough of Bromley v C[2006] EWHC 1110 (Admin)) was approved and had already established the principles at 2 and 4 above.

In summary, if my child’s / children’s attendance is otherwise good, it is not a criminal offence for me / us to take him / her / them on a term time holiday. Schools and local authorities are required, and have been since the 2006 decision in Bromley, to look at the wider attendance picture before issuing TPN’s.

Finally, what is and what is not ‘regular attendance’ in % terms is, it is fair to say, a matter ultimately for Magistrates to decide and that they have a wide ambit of discretion. That said, in Platt, a decision was made, supported by the High Court, that he had no case to answer on the % indicated above and you should, at the very least, give serious consideration to whether it would be fair and just to issue a TPN where the overall attendance is above 90%, being the current threshold for defining persistence absence, which was the purpose of the legislation on attendance in the first place.

Regards

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