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A slap in the face becomes a kick in the balls for the Education nomenklatura

A fresh instalment in the case of the man, the heroic Jon Platt, prosecuted for taking his chid out of school in term time for a holiday, but was acquitted by Magistrates. Scandalously, bureaucrats on the Isle of Wight appealed against the decision of the Magistrates to throw out the case, only to find that the High Court has found ‘no error of law’ in the Magistrates’ decision, so the acquittal remains. This has now blown back in the face of the bureaucrats, as this decision sets an unwelcome precedent with two High Court judges giving a ruling on the law, and meaning that for years, bureaucrats have harassed parents and got many to pay fixed-penalty notices on what was likely, in most cases, to be a wholly wrong interpretation of the law. As Mr Platt put it:

“Is there really 100,000 parents who are so criminally incompetent that it warrants dragging them to court?”

It appears that the scale of the problem is vast:

According to local authority data, almost 64,000 fines were imposed for unauthorised absences between September 2013 and August 2014.

And are the bureaucrats saying ‘Oh well, the law is the law, we must respect it’? If they are, I can’t hear them.

This is, of course, great news for parents in England and Wales who may now take their children on holiday in term-time without a realistic prospect of a prosecution. It also means that the old and absurd complaint about prices and supply-and-demand, ‘Oh look, holiday prices go up at half-term, how exploitative blah, blah, blah, regulate the holiday industry…‘ will be less easy for buffoons and villains to make out, and there will be a more economic use of resources in the holiday industry, taking use one more step away from the Stone Age.

What’s not to like when the light of freedom flickers more brightly?

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35 comments to A slap in the face becomes a kick in the balls for the Education nomenklatura

  • Expect a change in the law damnably quick.

    During the interregnum though, I assume that people can challenge these unlawful fines for review and if refused take the local council to court through the small claims process?

  • Mr Ed

    JG,

    Those wrongly harassed by a local authority may claim that they were victims of malfeasance and seek to recover the money, but I’m not sure if there is a case in contract as the ‘correct’ approach is to refuse to pay and either seek an injunction against the abuse of process or challenge the prosecution. The money raised from these notices is not payable to the Crown but is kept by the local authority a direct breach of the common law in Dr Bonham’s Case.

    I think that the best solution would be a general amnesty, refunds of all fines from the pockets of, and impeachment of all officials involved, who should be dismissed from their employments and barred for life from receiving any state or publicly-funded employment or benefits, and be ordered to repay all salaries they have received (before tax etc.) in their wrongful persecution of those seeking to live under the Queen’s Peace.

  • Thirty years ago, I worked in the Potteries with someone who always took his kids out of school for the three weeks after the “potter’s fortnight” (an old local holiday) and the end of term, thus getting a much better summer holiday by going before term ended. His deal with the school was that they would tell him what was on the syllabus for those three weeks and he would ensure his kids knew it by the time they returned for the next year. As his ability to persuade the school of this will tell you, this was 30 years ago, when regulations and bureaucratic arrogance were not quite what they are today.

  • A local authority remains a legal entity without crown immunity and is therefore subject to the normal legal procedures such as the Small Claims Track of the County Court with respect to the recovery of debt.

    No difference from recovering debt from a dodgy self-employed builder, at least the local authority has offices that can be entered and goods and chattels that can be seized.

    As for the legal basis for making a claim, simply write to the local authority enclosing the details of the penalty that was charged and making reference to the judgement from the high court. Give them a reasonable amount of time to respond, say 10 working days and if they bluff, refuse or ignore send a “Final Letter Before Action” demanding immediate repayment of penalty + interest + costs with a “Time is of the essence” clause and give it another 10 working days before commencing legal action.

    With the Small Claims Online service it can be done entirely over the internet.

    My guess is that local authorities will be inundated with claims such that most will be granted judgement by default. Then send in the bailiffs to collect.

    What’s sauce for the goose is sauce for the gander. Certainly a local authority would waste no time doing the same if the situation was reversed.

  • Alsadius

    Wait, this was ever illegal? My parents took me out of class on vacation most years, and it was never an issue – just talk to the teacher, get the homework, maybe miss a test and lose some marks(but it’s elementary school, so who cares?).

    John: Most people are not you. I’d wager that the majority of authorities will not get a single such letter, let alone a tidal wave of them.

  • Mr Ed

    The particular offence in this case came about under Labour in 2003 as part of the Labour government’s Blitzkrieg against ‘anti-social’ elements, er, behaviour, under the Orwellian (in name and content) Anti-Social Behaviour Act 2003, section 23.

    This enabled, rather than costly and cumbersome prosecutions with the burden of proof, a ‘short-cut’, the ‘Fixed Penalty Notice’, a fine of £60 (doubled to £120 if you don’t pay swiftly) as an alternative to prosecution, with no criminal record resulting, nor an admission of guilt. And, like the Spanish Inquisition, the money raised went back to the scum enforcing the law.

    So for the harassed parent, the ‘plea bargain’ of pay up and move on, or fight for your rights, and risk a criminal conviction etc.

    BTW and FWIW, Mr Platt, the hero of this case, is an Ulsterman, is this ‘thran‘?

  • Sam Duncan

    I went to an independent school. Nobody took holidays during term-time: if your kid missed school, you lost money. There were no refunds for missed days. In sixteen years, I can’t recall any of us missing school for family holidays, although plenty missed holidays to pay for school.

    So I can’t help thinking that this whole affair is a result of bringing the state into the equation. Because if you’re going to do that (in order, for example, to create the cozy illusion that it’s all “free”) then you have to accept that the it will, sooner or later, make failure to play by its rules a criminal offence (as JG says, expect a change in the law any day now). The state is not your friend.

    Fair play to Platt for giving the government a kick in the privates, but I can’t really muster much sympathy.

  • I have a crazy idea. What if the children are actually the responsibility of their parents, not the State, and said parents can take their damn kids out of school whenever they feel like it?

  • John: Most people are not you. I’d wager that the majority of authorities will not get a single such letter, let alone a tidal wave of them.

    I don’t know. There are a lot of butt-hurt middle classes who have been hit by this and those folks know how the system works.

  • Laird

    Mr Ed, I enjoyed reading your proffered “best solution”. It started out amiably enough with a general amnesty, but then got deeper and deeper into the severity of penalties. I fully expected you to end that paragraph with a call for public hangings.

    Since this practice has apparently been going on for years unchallenged, I would expect that there will be no refunds for prior fines as the actions of the school administrators would have been presumptively legal. In other words, if challenged I expect that the courts would conclude that this new ruling is effective only prospectively, not retroactively. So no refunds for you. However, it will be interesting to see how this works going forward. Now that the courts have ruled definitively on the issue, if some school administrator somewhere tries to adhere to the old ways and attempts to assess a penalty, I wonder if an action would lie against him in tort for malicious prosecution or something similar?

  • Mr Ed

    Laird,

    I would mutter some words of protest againat more severe penalties, but for these people ‘Befehl ist befehl’.

    The problem is that here, the Fixed Penalty Notice is a perversion of a contract, imposed under statute by threat, and so coercive in its nature. Generally the English courts have been fairly keen to row back on the State’s wrongs and reverse wrongful convictions, but here there is no conviction, just an ‘unfair contract’, which generally can under statute be deemed void if there is oppression on the part of the offeror, so two wrongs might make a right. There is also the potential remegy in tort for misfeasance in public office, which might found a claim but the hurdle is high.

    Going forward, there might be grounds for imjunctions to restrain wrongful use of these notices for oppressive conduct in public office where officials are too eager. Perhaps some holiday companies might fund such a class action to earn some publicity and goodwill. Indeed, Mr Platt was crowdfunded in defending his appeal, I wish that I had known of it sooner so as to have contributed.

  • Runcie Balspune

    The “fixed penalty notice” was originally a tool against driving and disorder offenses, but the Acts of 2003 and 2005 gave the councils a way to raise funds simply by imposing fines on any perceived “offense”. The fact that you get a criminal record for not paying is an incentive and it did not take long for the fascist sh*ts in cash strapped councils to see this as a godsend. What followed was a long list of “offenses” such as overfilled bins, inconsequential littering and putting the wrong thing in recycling.

    The fact it has been shown we can challenge this has been a long time coming. Well done that man. is there a GoFundMe for him?

  • Stonyground

    “And, like the Spanish Inquisition, the money raised went back to the scum enforcing the law.”

    This particular aspect has always appalled me. Isn’t it obvious that there can be no justice when those that are holding the scales have a vested interest in finding you guilty?

    I recall a case where the local authority had to repay a great load of speeding fines because someone had challenged his fixed penalty notice on the grounds that the speed limit signs were so poorly maintained as to be unreadable or overgrown by hedges. There was no action taken against the perpetrators despite the fact that the poorly maintained signs were known about at the time. This grand theft against the public was entirely deliberate but no one was prosecuted for it.

  • Mr Ed

    Stonyground:

    This particular aspect has always appalled me. Isn’t it obvious that there can be no justice when those that are holding the scales have a vested interest in finding you guilty?

    To our masters, that is a feature, not a bug.

  • Paul Marks

    Good post Mr Ed.

  • Nicholas (Excentrality!) Gray

    Darryl, what a joker you are! If they tried that now, the kids would be damned!
    Mr Ed, doesn’t the American system of Asset Forfeiture also produce these incentives in the law enforcement agencies?

  • Mr Ed

    Nicholas,

    Here in the UK asset forfeiture is gaining traction, but nothing like the scale in the US (with some States, 8 beleieve, recently rowing back on pre-conviction forfeiture).

    And of course we have the SEFRA, the Self-Financing Regulatory Agency, model of the regulator that funds itself from fees charged to the profession or industry regulated, a wicked abomination contrary to the Common Law of Sir Edward Coke’s discovery in Dr. Bonham’s Case.

    However, the seed was sown with the Spanish Inquistion, which funded itself with its victims assets.

  • PaulH

    I agree with the sentiment of this thread, but I think its target has been misidentified. I’m a governor at a school, and neither our school nor any other I’m aware of wants to participate in imposing these penalties – we think attendance is important for sure, but if a child is doing well and has good attendance generally then a week or two out is unlikely to have much impact.

    Furthermore I don’t believe the Local Authorities want to issue them either – they’re making little if any profit from them, the cost of enforcing the system being on a par with the income it generates, and I’d guess they’re now quite concerned that they might have to pay back money they didn’t want and don’t have. They are just, for better or worse, implementing the policy of central government as they are required to do.

    So please blame government, but don’t assume it’s anything to do with people ‘in’ education – the problem is generalist politicians applying common sense to a nuanced area, common sense being a scarce resource in such people.

  • Mr Ed

    PaulH

    So please blame government, but don’t assume it’s anything to do with people ‘in’ education

    I see your point, but at the end of the day, it is a local decision of a specific person to issue a FPN, and whoever does that should be certain that, even on its own debased terms, the penalty is justified by law.

    The offence is set out in the Education Act 1996, with the Anti-Social Behaviour Act 2003 providing for the FPN, but here is the wording:

    Offence: failure to secure regular attendance at school of registered pupil.

    (1) If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.

    Even if you think that this is a matter for the law, on the plain wording of the statute, a one-off incident of taking a child on holiday is nowhere near the offence, so there was no reason to have issued the FPN. It was just bureaucratic bullying to have issued a FPN to the heroic Mr Platt. So whoever issued him the FPN deserves to be excoriated in the strongest terms. Guidance is no excuse, the official concerned should have personally read the statute and applied the facts first before taking that decision.

    Let us remember the (fictional) Devil Speech of Sir Thomas More.

  • PaulH

    Mr Ed: Actually guidance is very much an excuse – the statutory guidance makes it clear what is expected to happen, and that fixed penalty notices are at the milder end of the punishment spectrum. Now a local authority could have put together a legal case to dispute the basis of the statutory guidance (a non-trivial task), but the willingness to stand up to a body (in this case, central government) that can squish you when it chooses is rare, and not just in local government. So sure, we might wish they’d done more, but I’ll reserve the bulk of my hostility for the people who came up with bad law, rather than for those not sufficiently brave to fight it.

  • Fraser Orr

    @PaulH

    I appreciate the fact that your bring a “from the trenches” perspective to this issue. I think that perhaps the real root of the outrage against this action is one more axiomatic than the particulars of this law. I think that we libertarians think it is none of the government’s business whether we send our kids to school or not, and so the idea of being fined for making, what we consider, sound parenting decisions is utterly repugnant.

    If you accept the premise that the government has the right to force parents to send children to school then you’d probably see this as a zealous over-enforcement of a reasonable law. But to me it isn’t that at all, it is a paternalistic invasion into the most precious and intimate rights of a family — the right of a parent to raise their children in the manner they see fit.

    I understand that not all children are blessed with good and caring parents, and it isn’t unreasonable for we, the mob, to do things to help those children. And for sure failing to provide a child a decent education is a form of neglect in a modern society. But dealing with child neglect is a whole other part of the story.

    And as we, the mob, decide to intervene in these bad family situations, let us remember that the choice is often not between bad and good, but between bad and really bad. And whether government intervention is the “bad” or the “really bad” is often a coin toss. For example, I live near Chicago. I will tell you that I consider it little short of child abuse to send children to some of the government run schools they have in some of the bad parts of Chicago.

  • Laird

    Fraser, I agree that your explanation of the “real root of the outrage” properly describes the standard libertarian position on “public” (i.e., government) education, but it’s not really the purpose of this thread or the relevant point of discussion. Given that compulsory attendance at government schools is the law*, what are we to make of this enforcement mechanism? And it is there, I think, that PaulH’s attempt at justifying the local official’s action fails.

    PaulH claims that “the statutory guidance makes it clear” that the local official was following the law, but this is simply incorrect. As Mr Ed has already shown, the statute proscribes “failure to secure regular attendance” at the local school (my emphasis). The operative term here is “regular”, and missing school once in a while for a family holiday (or whatever reason) is the antithesis of the “regular” non-attendance to which the statute clearly speaks. The local official demonstrably did not follow the law, and should be held accountable for his transgression. And if he was relying on the advice of the school’s attorney the school district needs to retain better counsel, preferably one who can read English. Because the statute is admirably clear (at least in this respect). So to my mind the blame rests squarely on the local officials, not on the central government. The statute was not designed for such an application, and is blameless.

    There was no necessity for the local authority to “put together a legal case to dispute the basis of the statutory guidance“; it could simply have forborne to issue the penalty notice in a situation to which the law clearly was not intended to apply. Certainly a rational local authority would not have pursued the matter into Magistrate’s Court, let alone all the way to appeal. That to me demonstrates not only a desire on the part of the local authority to enthusiastically “participate in imposing these penalties” (contrary to PaulH’s initial post) but also a remarkable degree of legal incompetence.**

    * Befehl ist befehl, as Mr Ed points out.

    ** Unless, of course, the barrister well knew that the case was a loser but took it in order to extract the maximum possible legal fees from this venal school district, in which case my hat is off to him.

  • Mr Ed

    Unless, of course, the barrister well knew that the case was a loser but took it in order to extract the maximum possible legal fees from this venal school district, in which case my hat is off to him.

    But he too was only obeying orders, or rather instructions and his professional code of conduct. The ‘cab-rank’ rule requires a barrister to take any case within his competence (as professed, but let’s not go there) where there is no conflict of interest for counsel, and where the fee is to be paid, regardless of who or how it is paid (within the law). That is what makes the profession so repulsive to me.

    It would be mischievous for a (principled) barrister to take a case knowing it was a loser and not to have advised the client of that view, with the hope of setting a precedent, despite his best efforts, that checks abuses by the State.

  • Laird

    “Principled barrister”. Know any?

  • Mr Ed

    There was Edward Coke, at least he found some principles after leaving the Bar for the Bench.

  • Laird

    If you have to go back 400 years, you might have put your finger on the problem!

  • Mr Ed

    If English law should last for a thousand years hence, Coke was its finest lawyer.

    The rest of ’em, bah!

  • And people still ask me why I homeschooled my three kids…

    I loved the freedom to take the kids with us on our business trips — in fact, that’s how they got to visit a dozen countries* in four years and practice their foreign-language skills. I don’t even recall whether any of our trips occurred during “term time”, come to think of it, because it was an irrelevancy. (The kids frequently used the occasion to torment their state-schooled friends, e.g. “While you were in gym class, we were getting drunk in Munich/Salzburg/London/Heidelberg.”)

    *Austria (twice), Canada, Chile, England (three times), France, Germany (twice), India, Italy, Japan, Portugal, Scotland, Switzerland.

    Talk about an education. When we asked the kids where, if given the chance they would live if they could, Tokyo, Paris, Vina del Mar (Chile) and London were the unanimous choices, in differing order by child. And when we pointed out that (with the exception of Daughter’s Japanese) they spoke none of the native languages, they all just shrugged and said, “We’d learn them,” like it was absolutely no big deal.

    To this day I will state unequivocally that their travel educated them exponentially more than any “learning” they may have acquired in the public school system.

  • Nicholas (Excentrality!) Gray

    Why didn’t you teach them Esperanton (object ending there!)? Isn’t that supposed to be the world language? Or would they think it too easy?

  • Rob Fisher

    PaulH writes, “I’m a governor at a school, and neither our school nor any other I’m aware of wants to participate in imposing these penalties – we think attendance is important for sure, but if a child is doing well and has good attendance generally then a week or two out is unlikely to have much impact.”

    I was under the impression that attendance affected Ofsted ratings, and that (since many parents seem to care about this (I laugh at them)) the school was therefore pretty anxious about it. It would explain certain bold and underlined text in the school newsletter pleading the importance of not missing any days.

  • PaulH

    Rob – absolutely schools are concerned about attendance, both because it is a factor in achievement, and because it affects their OFSTED rating. But there’s a difference between that and supporting fines – schools are also concerned with test scores, but I’m not aware of any school that would support fines on the parents of poor-performing students.

    (Note that schools aren’t inherently *that* concerned with test scores – it’s not uncommon for schools to do enough test-focused teaching to meet some sort of standard, and then focus their attention on non-test topics that help turn out well-rounded individuals. That’s not an approach popular with government)

  • Andrew Duffin

    I went to an independent school; I can remember only one instance of someone being taken out of school for a holiday. As it happened, he was a friend of mine so I know what happened next. The parents received a letter saying that clearly they did not value so-and-so’s place at the school, and in the event of any recurrence, said place would be offered to someone else.

    As places at the school were expensive, much-competed-for, and carried a considerable social standing, that was the end of the matter.

    Naturally such things are a little harder to enforce in the state sector…

  • Alisa

    I can certainly see how irregular attendance can be disruptive to the internal system of a school – even if it is a private school in an overall privatized ]education system, where parents can freely choose whether to enroll their child in a particular school, if at all.

  • PaulH

    Laird: You’ve said that the law ‘clearly’ did not apply in this case, but I don’t think it’s clear at all, as it depends on the meaning of ‘regularly’. It seems reasonable to assume that doesn’t mean ‘on a periodic basis’ – it would be perverse to think that a pupil dropping in once a week satisfied the intent of the law. One could accept the definition of ‘frequently’, but that seems doubtful to me – ‘good’ attendance isn’t defined by attending ‘quite a lot’.

    I think the most sensible reading is that regularly means “at a level that corresponds with the goals of attending school”. So a child should attend enough of a school year that they achieve as much as they are able to. Clearly missing a single day is unlikely to affect their end of year outcomes, but statistically children who attend for ~90% of a year (which is about what the child in this case was hitting) do worse in their exams than children that attend 95%+ of the time. So in that sense the family weren’t complying with the law.

    That’s just a statistical correlation, of course, and makes no reference to how the individual child is performing, nor the merits of the event requiring their absence. A good school would weigh up those things and use their discretion to approve or deny an absence. Unfortunately central government doesn’t want schools to use their discretion, so I suspect they’ll instead chase increasingly tortured, pseudo-precise replacements for ‘regular’ in the next set of regulations and statutory guidance.

  • “Why didn’t you teach them Esperanton?”

    I know your question is ironic but here’s the answer anyway.

    For the same reason I didn’t teach them Afrikaans. Actually, Afrikaans would have been a better choice than Esperanto for two reasons: a.) more people speak Afrikaans and b.) it’s useful in at least ONE country (unlike Esperanto, which is useful in none).

    Protip from a professional educator (my wife): if there’s no incentive or desire to learn something, no learning will occur. My kids knew no German before we arrived in Germany for the first time. By the time we left, two weeks later, they could all order from a German menu, and were watching German TV with about 50% comprehension.

    Incidentally, that would be another reason to pick Afrikaans over Esperanto: Afrikaans and German share a sentence structure:

    “I lost my hat.”
    “Ich habe meinen Hut verloren.” (Ger)
    “Ek het my hoed verloor.” (Afrik)