New rules call for closer cooperation between local authority and school, giving increased protection to children at risk, writes Ingrid Sutherland.
The removal of a child's name from the school roll is now governed by the Education (Pupil Registration) Regulations 2006 (SI 2006/1751), together with guidance, in force from September 2006.
These new regulations update and consolidate the 1995 ones and make some important changes. The most important section of the regulations is an exhaustive list of circumstances when a pupil’s name can be deleted from the school roll. If the circumstance is not listed, or the procedure is not followed, the child's name cannot be removed lawfully.
WHY THE NEW LAW?
The old regulations were difficult to interpret and apply. They required schools to share information with the local authority (LA) only where there were concerns about the pupil’s attendance, or where the pupil had left to be educated outside the school system. They were introduced when it was rare for pupils to attend more than one school, and were drafted when the use of computerised registers was in its infancy.
It is against this background that the new law has been introduced.
AT A GLANCE...
The new regulations extend the circumstances in which schools must inform their LA that a pupil's name is to be deleted from the admission register, so that systems to prevent children going missing from education and to ensure well-being can operate as early as possible where there is cause for concern.
The new regulations allow for pupils to be registered more easily at more than one school — this is now more common as it gives pupils access to subjects and services not available at their main school.
The regulations also reflect advances in modern technology in terms of data storage.
Documents and websites
Anyone dealing with pupil registration should download:
- The Education (Pupil Registration) Regulations 2006 (SI 2006/1751)
- Explanatory note and memorandum for regulations
- Outline of the 2006 Pupil Registration Regulations, and the changes from the 1995 regulations
- Keeping Pupil Registers: Guidance on applying the Education Pupil Registration Regulations
- Absence and Attendance Codes: Guidance for Schools and Local Authorities www.dfes.gov.uk/schoolattendance
- require schools to put pupils on the admissions register on the first day that the school expects them to attend, rather than when they first actually attend (reg 5)
- add an 'exceptional circumstances' reason for non-attendance (school site or part of it closed, failure of school transport arrangements) (6)
- require the proprietor of a maintained/special school to grant leave of absence for a holiday only where the application is made in advance by a parent with whom the pupil normally resides, and where the circumstances behind such a request warrant it (7)
- widen the scope for pupils to register at more than one school (8)
- make changes to the grounds upon which a pupil's name may be deleted from the admissions register (8)
- add reference to when permanent exclusion takes effect under exclusion procedures for academies, CTCs or CCTAs under their funding agreements (8)
- allow traveller children to be marked as 'present at approved educational activity', as opposed to a separate code for when they are travelling, and provide for their dual registration (9)
- change the circumstances in which a return must be made to the LA to include details of pupils who have 10 days of continuous unauthorised absence (12)
- add to the requirement to make a return to the LA where a pupil's name is deleted for home educating; when the pupil no longer lives or boards within travelling distance of the school; when the school medical officer has certified that the pupil's health means s/he will not return to school while of compulsory school age; when the pupil has died or has been permanently excluded.
The return must be made immediately the school becomes aware of the circumstances — and at least before deletion of the pupil's name (previously was immediately following deletion) (12)
- require any amendment to the register to show the original and amended entry, the reason for, date and author of, the amendment (13)
- allow schools to use electronic registers; allow for electronic
back-up or micro-fiche copies of registers (as opposed to printouts); and require that those inspecting registers be given access to electronic registers and additional back-up copies (15)
The 2006 regulations:
- require all schools to keep admission and attendance registers (reg 4)
- prescribe particulars that must be contained in the registers (5 & 6)
- prescribe when leave of absence may be granted (for maintained and special schools) (7)
- specify grounds on which a pupil's name must be deleted from the admission register (8)
- provide for dual registration for pupils with no fixed abode (9)
- make provision for the inspection of (10), obtaining extracts from (11), method of making entries in (13) and preserving (14) the registers and the use of computers (15)
- specify circumstances for returns of the contents of the register to be made to the LEA (12)
Reason for absence not established
Regulation 6(3) states that if the reason for a pupil's absence cannot be established at the time the register is taken, the absence must be recorded as unauthorised.
Any subsequent correction to the register to record the absence as authorised must be made as soon as practicable after the reason for the absence is established, and in accordance with regulation 13 — i.e.
in ink (or as allowed for with computerised records in regulation 15) and so that the original entry and amendment are both clearly distinguishable.
Reg 8(2) provides that where a LA makes arrangements for a child to become a registered pupil at a special school, his or her name must not be removed from the admission register of that school without that LA's consent or, if that LA refuses to give consent, without the secretary of state's direction.
Deletion from roll (SCHOOL-AGE PUPILS)
Regulation 8(1) says that you can remove a name when:
(a) the pupil is registered at a school named in a school attendance order, and the local authority substitutes another school for the one named in the order, or revokes the order because arrangements have been made for the child to be educated otherwise than at school
(b) the pupil has been registered at another school, other than when the school agrees to registration at more than one school, in a case falling within (a) above or where a child of no fixed abode is dual-registered
(c) the pupil is registered at more than one school and has ceased to attend the school, and the proprietor of any other school at which s/he is registered has given consent to the deletion, other than when registration at more than one school is agreed, in a case falling within (a) above or where a child of no fixed abode is dual-registered
(d) the pupil has ceased to attend a school and the proprietor has received written notification from the parent that the pupil is receiving education otherwise than at school
(e) the pupil has ceased to attend the school and no longer lives a reasonable distance from the school, unless s/he is a boarder
(f) the pupil is granted leave of absence for a holiday of more than 10 school days, then fails to attend within the 10 school days after the expiry of the authorised leave, and the proprietor does not have grounds to believe that s/he is unable to attend owing to sickness or any unavoidable cause, and both the proprietor and the LA have failed, after reasonable enquiry, to ascertain where the pupil is (a new requirement on schools and LAs)
(g) the pupil is certified by the school medical officer as unlikely to be in a fit state of health to attend school before ceasing to be of compulsory school age, and neither the pupil nor his parent has indicated the intention to continue to attend beyond compulsory school age (a new proviso requiring an indication of the parent's or pupil's intention)
(h) the pupil has been continuously absent for not less than 20 school days, such absence was not authorised, the proprietor does not have grounds to believe that the pupil is unable to attend due to sickness or any unavoidable cause, and the proprietor and the LA have failed after reasonable enquiry to ascertain where the pupil is
R v London Borough of Barking and Dagenham and Barking Comprehensive School  ELR 144 confirmed: (1) there is a legal duty on both the school and the LA to make reasonable enquiries; (2) it is not necessary to wait until after the 20 days to make the enquiries; (3) it is reasonable to inquire by letter to the family's home, even where it is known that the family is away; (4) it is legal, though harsh, to remove the name on the day the 20 days expires
(i) the pupil is detained in pursuance of a final court order, or of an order of recall by a court or the secretary of state for a period of not less than four months, and the proprietor does not have reasonable grounds to believe that the pupil will return to the school at the end of that period. Pupils in custody cannot have their names deleted for any other reason
(j) the pupil has died
(k) the pupil will cease to be of compulsory school age before the school next meets, and the relevant person has indicated that s/he will cease to attend the school (s/he ceases to be of compulsory school age on the last Friday in June of the year s/he turns 16)
(l) the pupil has ceased to be a pupil of a non-maintained school, an academy, CTC or CCTA
(m) the pupil has been permanently excluded
(n) the pupil, having completed nursery education in a school, has not transferred to a reception or higher class at the school
Deletion from roll (pupils not of school age)
Regulation 8(3) says that you can delete when the pupil:
(a) ceases to attend the school
(b) is continuously absent without leave for not less than 20 school days, the proprietor does not have reasonable grounds to believe that the pupil is unable to attend due to sickness or unavoidable cause and the proprietor has failed, after reasonable enquiry, to ascertain where the pupil is. The local authority is not required to make enquiries, unlike for pupils of compulsory school age in regulation 8(1)(h) above
(d) transfers from nursery to reception or higher class in the same school (a child only becomes of compulsory school age the term after s/he turns five, but schools may admit pupils to reception classes before they turn five)
(e) has been permanently excluded
When does A permanent exclusion take effect?
A head teacher can remove the name of a permanently excluded pupil from the school roll only at the end of the exclusion appeal process. This is not until the governing body has discharged its duty to review the head teacher’s decisions to exclude, and:
- the parent (or the pupil if s/he is older than 18) has stated in writing that s/he will not appeal
- the time for bringing an appeal has expired, and no appeal has been brought, or an appeal that was brought within that time has been determined or abandoned
Regulation 8(4)(e) deals with when permanent exclusions from an academy, CTC or CCTA take effect, in accordance with their exclusion procedures as required by their funding agreement with the DfES.
Dual registration of pupils with no fixed abode (reg 9)
Pupils of traveller families have a 'school of ordinary attendance' (one where, during the immediately preceding 18 months, they have attended during periods when their parent was not travelling in the course of trade or business).
The name of such pupils cannot be removed from the register of this school. Regulation 8(1)(b) and (c) above govern deletion of their name from any other school's or schools' register that they may also be attending.
1. Keeping Pupil Registers: Guidance on Applying the Education Pupil Registration Regulations
This is not statutory guidance and you do not have to follow it. If, for example, a parent wants to ask for authorised leave, schools can refer to the guidance for information on how to exercise their discretion.
- leave of absence: paras 49-62
- approved educational activity: paras 63-72
- part-time timetables: paras 73-77
- school closure: paras 78-84
- failure to return from an extended leave: paras 127-132.
2. Absence and Attendance Codes: Guidance for Schools and LAs
This explains codes for marking the attendance register, including:
- when specific codes should be used and why
- different 'statistical', 'legal' and 'physical' meanings, and the DfES definition of the codes
It is not statutory guidance — but note that it is clear that a school cannot have a blanket policy on not authorising holidays during school term.
CHALLENGES TO AN UNLAWFUL REMOVAL
If a parent believes that a school has removed a child's name from the roll unlawfully, s/he can:
- make a formal complaint through the school's complaints policy
- ask the local authority (for a maintained school) to intervene
- ask the local councillor or MP to intervene
- apply for readmission and, if refused, have a right of appeal to an independent appeal panel, which would have to consider the legality of the removal from roll in its deliberations. Note that the right to due process under Article 6 of the Human Rights Act 1998 is not engaged in a decision to remove a pupil's name from the roll
- apply to the High Court for judicial review
It is best to follow the correct practice and avoid having to spend time dealing with such a challenge.
THE FINAL RESPONSIBILITY
Once a pupil's name has been removed from the school roll, the school is no longer legally responsible for providing him or her with education. Responsibility then rests with the parent to ensure that his or her child of compulsory school age receives education either by attending school regularly or otherwise — or the parent may face prosecution.
Responsibility also rests with the LA for the area where the child lives to make educational provision for him or her at school or otherwise.
Ingrid Sutherland is a solicitor, giving advice and training for the Advisory Centre for Education
FIND OUT MORE
Information and links on the new regulations from the DfES: www.dfes.gov.uk/schoolattendance/press/newsdetails.cfm?id=61
Full text of the Education (Pupil Registration) Regulations 2006 can be found at www.opsi.gov.uk/SI/si2006/20061751.htm