Bank holidays for teachers?

The Labour Party’s announcement of wanting to introduce four new bank holidays on Saint’s Days (I thought Corby’s Labour didn’t do religion) is either an attempt to lose the education vote or the parents’ vote.

Either way, if implemented, it would likely harm the education system. Drop 4 days from the education year, reducing it down to 186 and school staff including teachers benefit, unless on term-time only contracts and these are seen as not being term-time days. Parents have to find four more days of childcare if they have to work on bank holidays. Since these days move around, they won’t even create long weekend every year.

However, keep the school year at 190 days and teachers and other workers in schools won’t see the benefits of the extra holidays. This reminds me of my previous post about Labour and pay policies in the 1970s and the effects on teachers working conditions and benefits when non-pay benefits were more important than pay rises.

Labour needs to tell the education community what the announcement means for them, apart from more disruption in November, March and sometimes April as well. I wonder why they Labour didn’t go for celebrating the Tolpuddle Martyrs; Annie Besant’s birthday; Emily Pankhurst Day and perhaps Revolutionary Figures (non-sexist) Day to celebrate those that fought against Empire and oppression around the world. Saint’s Days seem just a bit passé and what we might have chosen as a country to take as holidays before the Reformation.

With an economy that doesn’t boast the best productivity record, adding another four days to the paid holiday calendar doesn’t seen a great way to run the economy either. Perhaps Labour is really thinking of the trade union workers that can charge extra pay for working on bank holidays: do they still have a day off as well? For them, it will be a great bribe to vote for Corbyn, especially if the Conservatives really don’t pledge not to raise taxes in the next parliament.

At least none of these Saint’s days fall within the examination system, so there won’t be the disruption there has been in higher education where the summer term bank holidays all on a Monday. But, perhaps Labour has given up on increasing manufacturing as the solution to our nation’s economic problems post a hard BREXIT and sees the way forward as a dance and skylark economy.

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School days mean school days

The judgement of the Supreme Court on the matter of whether term-time holidays are ‘acceptable’ in terms of pupil missing school is interesting. The lower courts clearly sides with the parent, and accepted the decision of the parent. This presumably was based, at least in part, on the contract between parent and State. The parent is required to secure the education of their child, but the State doesn’t prescribe how that is achieved, except in essence by stating a default position of schooling provided by the State. The Supreme Court had to decide the meaning of “fails to attend regularly” in section 444(1) of the Education Act 1996.

The Supreme Court would now seem to have very clearly reaffirmed that if you enter into that contract with the State for the State to educate your child, it is binding in terms of the requirement to deliver your child to school when the school is in session; illness and other specified unavoidable events apart being allowed as reasons for non-attendance.

Interestingly, the parent or child has historically had no come-back on the school or its overall operator if for any reason the school cannot open. Hence the residual duty remaining with local authorities to step in and ‘secure’ the education of a child if something happens to an academy or free school. Hence, also why the State has never guaranteed the level of teaching or the qualifications of those required to teach any particular child anything.

I have read the judgement of the Supreme Court, and Lady Hale in particular with interest and was struck by the following paragraph in what was an excellent summary of education history and the law on attendance that is well worth reading and largely free of legal jargon.

Finally, given the strictness of the previous law, Parliament is unlikely to have found it acceptable that parents could take their children out of school in blatant disregard of the school rules, either without having asked for permission at all or, having asked for it, been refused. This is not an approach to rule-keeping which any educational system can be expected to find acceptable. It is a slap in the face to those obedient parents who do keep the rules, whatever the cost or inconvenience to themselves.

Copied from: https://www.supremecourt.uk/cases/docs/uksc-2016-0155-judgment.pdf

We are now, it seems, much closer to the pre-1944 Education Act position where even a single day of missed school could be regarded as unacceptable and the commission of an offence. Parents will now need to take heed of the rules of the school.

However, I foresee some future questions over the legitimacy of absence by ‘illnesses where the illness is self-certified by the parent. Taking a Friday and the following Monday off ‘sick’ may be especially risky is a school creates a rule requiring a doctor’s note in such circumstances. The absence of a note might be an unreasonable absence.

The case still leaves un-resolved the twin problems of the price of holidays for families with children at school and the issue of families that work in holiday areas. The original Victorian legislation recognised we were in part an agricultural nation and that affected attendance at school. The current legislation doesn’t recognise we are now a service-based economy. For good measure, it also doesn’t recognise that the Victorian legislation on home to school transport provision needs bringing up to date as well.

 

Ministers and the Rule of law

The judgement of the High Court in the recent case concerning term-time holidays is now available for all to read at http://www.bailii.org/ew/cases/EWHC/Admin/2016/1283.html The issue itself is on the way to the Supreme Court, where it seems likely that they DfE may be joined as an ‘interested party’ to the case. That makes the remarks by the Minister of State, Mr Gibb, quoted by the Guardian on the 9th June that “schools should continue applying the current regulations that allow parents to be fined” all the more interesting.

The recent case turned on whether the pupil had ‘regular attendance’ as that is what primary legislation requires from parents that entrust their offspring to the state school system for their education. Parents, it must be noted, are not required to send children to school to be educated, but if they do so it must be ‘regularly’. There seems to be no similar legal penalty that appears to be enforced for those that decide to home school or educate their children in some other way than sending them to school and that issue may need to be looked at if the government loses in the Supreme Court and reconsiders the current legal position.

Under the ‘rule of law’ governments are bound by the actions of the courts. In England, our common law system is founded on the judgements of the courts, and especially the superior courts, and these decisions change legislation enacted by parliament, usually by clarifying them. This is often because the way parliament legislates can mean Acts of Parliament are badly drafted and not enough time is spent at the Committee Stage picking over the Bill during the discussions. Interestingly, the House of Lords generally does a much better job of scrutinising legislation that starts there than does the other chamber.

So, should a Minister tell schools to ignore the decision of the High Court? He certainly won’t be able to tell them to ignore the judgement of the Supreme Court even if he doesn’t like it and even if he intends to try and change the law in a new Act of Parliament. I wonder if it was ill-judged on his part to so strongly support the government’s current position on term-time holidays, especially as it is only backed by secondary legislation, when LORD JUSTICE LLOYD JONES at the High Court had said in the judgement on the recent case at paragraph 19 that, “the regulation does not have the effect of amending the statute. In my view, the nature and scope of the offence created by section 444(1) remain unchanged. In particular I would reject the suggestion that Regulation 2 has the effect that any absence without statutory excuse necessarily constitutes an offence under section 444(1).”[of the relevant Education Act]. On that basis, perhaps most parents who have felt hard done by where a fine has been issued will now take their case to the Magistrates’ Court and plead ‘not guilty’, at least until the Supreme Court has ruled in the matter.

Realistically, it seems to me that ‘regular attendance’ has to be looked at in the round. The common sense view would seem to be that where a pupil has a good attendance record and the time off for holidays doesn’t impinge on important learning activities it could be treated no differently to the similar outcome if a pupil suffered a common childhood illness or a severe bout of flu. Where a child has a poor attendance record, then the holiday might just tip the balance between regular attendance and a failure to maintain regular attendance. In this case because it seems from the judgement that the child’s parents were no longer together and the other parent had already taken the child out of school that year, one can understand why the Council acted as it did, even where the child had an otherwise apparently very good and regular attendance record.

It is important that any revision of the primary legislation must define what is meant by ‘regular’. That will be a challenge. However, with home to school transport there has been a clear distance definition for very many years, so, about attendance, it should be possible to say something like, unless the pupil is unwell or attending a medical or dental appointment the parent of a child where the parent has asked the State to educate the child will need to ensure the attendance at school of the child by the required time every day that the school is open for the provision of schooling.

Finally, I support the view that where an offence is one of strict liability, as attendance at school is deemed to be, then it needs to be clear exactly what is required; it isn’t at present. I also dislike fixed penalty notices as a punishment because they take no account of parental circumstances and bear down more heavily on those that are less well off.

Surely, the real solution is for parents to accept the need for pupils to attend all the time and for travel companies to seek out vacations that cost no more in school holidays than during term-time. But, that is easier said than done.

 

 

Will climate change improve school attendance?

While the furore about the issue of pupils being taken on holiday during term-time was hitting the media the government published the annual data for overall school attendance during the autumn term of 2015 https://www.gov.uk/government/statistics/pupil-absence-in-schools-in-england-autumn-term-2015

Whether it was a direct consequence of the mild autumn last year or due to other factors isn’t possible to determine from the published data, but the percentage of days lost dropped during the autumn term of 2015 in both the primary and secondary sectors. Overall, primary schools averaged 3.6% of sessions missed, with secondary schools averaging 4.6% in the autumn of 2015. This compares with 4.1% and 5.5% of sessions missed during the autumn term of 2011, in primary and secondary schools respectively.

In 2011, 74.8% of pupils missed at least one session due to absence, whereas in 2015 the percentage was 72.3%, the lowest recorded during this period. Just over two thirds of pupils had an authorised absence, whereas it was around one in five that had at least one unauthorised absence during the autumn term. There was little change in the percentage of pupils arriving late over the five year period, with fewer than one in 25 not making it on time. With all the pressures on family life, this seems like a great achievement in meeting deadlines which in some cases involve several different schools for the same family.

The number of sessions lost through illness was the lowest recorded during any autumn term during the past five years, even so it amounted to 3,664,030 sessions. This compared with a peak of 4,100,750 sessions lost to illness during the autumn term of 2012. Dental and medical appointments accounted for the second highest percentage of lost sessions. I wonder whether a seven day NHS will help reduce this lost schooling even further as it remains stubbornly high at nearly 19% of absences.

Authorised family holidays have fallen between 2011 and 2015, from 6.4% to just 1.1% of absences, whereas unauthorised holidays have increased from 2.9% to 4.2%. Overall, the number of pupils losing time through holidays dropped from 571,260 in 2011 to 343,625 in 2015, with the largest drop in the number of pupils allowed to be absent for an agreed family holiday.

The timing of certain religious events can affect the figures and the number of pupils with at least one day lost for religious observance increased from 78,000 in 2014 to more than 467,000 in 2015 beating the 427,000 total reached in 2013.

If warm dry weather improves school attendance, then this argues for a longer winter break and a shorter summer holidays. Such a pattern might also save schools money on heating bills, but would certainly put pressure on family holidays if more children were trying to go on holiday over a shorter period of time. Perhaps more cruise ships is one answer, with family cruises during the summer holidays using ships from the southern hemisphere that might otherwise be under-filled during their winter months.

What is reasonable?

Until we see the full judgement in the recent case we won’t know what the judges in the High Court were thinking when they seemed to deemed it ‘reasonable’ for a parent to be able to take a child on holiday for a week during school term-time.

It is worth recalling that the overarching responsibility of parents is to see that their children receive an education when they are of compulsory school-age (there is a grey area for young people between the ages of 16-18 that will need clarification at some point.)

For young people between 5-16 the law says:

Duty of parents to secure education of children of compulsory school age.

The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable—

(a)to his age, ability and aptitude, and

(b)to any special educational needs he may have,

either by regular attendance at school or otherwise

The issue turns on the definition of ‘regular attendance.’ If the parent, as most do, hands over the responsibility to the State, what is the nature of the contract between the parent and the State?  The State agrees to provide the child with 190 days of schooling per year. It is accepted that children may be off sick and there may be other reasons for a child not to be present, but these will require ‘leave’ to be absent.

In the 1990s two things happened, Ofsted started reporting regularly on attendance levels at schools and the State wanted to drive up standards of education that were thought to be falling. As a result, the law was tightened to ensure regular attendance, with two defences; ‘sickness or unavoidable cause’ or ’with leave’. Historically, schools could grant up to 10 days leave, but that right was removed over time.

The government explained the basis for this change in relation to family holidays in the background to the secondary legislation making the change.

 The 2006 Regulations refer to parents applying for family holiday in “special circumstances” and to schools having discretion to grant up to ten school days of holiday per year. Many parents and some schools have interpreted this law as an automatic entitlement to an annual two-week term time holiday. The Education (Pupil Registration) (England) (Amendment) Regulations 2013 amend the 2006 Regulations to clarify that leave of absence during term time shall not be granted unless there are “exceptional circumstances”.

They further explained that;

For pupils to benefit from education and achieve their full potential they must attend school regularly. School attendance data from 2010/11 showed that 90 per cent of pupils with an absence rate of less than 4 per cent achieved 5 or more A*- C grades at GCSE or equivalent. In primary schools, 4 out of 5 pupils with an absence rate of less than 4 per cent achieved level 4 or above in both English and mathematics.

As Oxfordshire County Council’s document on the subject for parents notes;

90% attendance means that your child is absent from lessons for the equivalent of one half day per week.

So how draconian should the State be? Personally, I think in the first year of schooling  when routines are being set and key topics may be being learnt for the first time every effort should be made to attend and taking time out may not be helpful either for the child or their classmates if it disrupts the teaching. As a rule of thumb after that I think where pupils are rarely or never off sick, the guidelines in the old 10-day rule probably provided a sensible rule of thumb for head teachers. After all, some parents cannot take holidays during school holiday period because of the nature of their jobs. However, if a child has missed a lot of time through sickness, taking time off turning term-time that year for a holiday isn’t a good idea and I would expect a head teacher to refuse ‘leave’.

Essentially, the legislation should encourage parents to make the most of the education on offer for their children without seriously affecting either their education or that of their classmates.

My parents only ever took me out of school for one week at the start of my third year in junior school and I never really understood the work on fractions that was introduced during that week. Had it been the last week of the summer term it might have been a different matter.

However, what is clear is that major changes to legislation really ought to be part of primary legislation and not created by secondary legislation and Ministerial fiat. Had that been the case here, Parliament could have discussed in committee what it meant by the phrase ‘attend school regularly’ and the acceptable reasons not to do so.

Perhaps, as a result of this parent’s action it will now have a chance to do so. They might also ask whether if the State isn’t able to fulfil its part of the contract it should make up the missing days? Lord Denning did discuss this in Meade v Haringey in 1979 at the end of the Winter of Discontent, but it never came to trial and a decision.