Legal Methods and Skills First-Class Answer

Read Isle of Wight Council v Platt [2017] UKSC 28, [2017] 1 WLR 1441 and answer the following two questions:

1. How did the Court reach its decision in the case?


Lady Hale, before the United Kingdom Supreme Court (UKSC) commenced by summarising the background to the case, stating the Court had to determine the meaning of ‘regularly’ as stated under section 444(1) of the Education Act 1996 (the 1996 Act). The definition then had to be applied to a situation in which a father had taken his daughter on an unauthorised holiday during term time and had since been issued with a penalty notice in which he failed to pay.1



Previously, the High Court 2 agreed with the decision of the Isle of Wight Magistrates Court that, ‘Mary was a regular attender’ and had a satisfactory attendance of 90.3% due to them taking into consideration the entire years’ attendance rather than the period of absenteeism alone.3



However, when the Isle of Wight queried the decision of the High Court, five UKSC judges unanimously reversed the judgment of both lower Courts, returning the case to the magistrates to reconsider the case as if ‘his submission of no case to answer had been replaced.’ 4



Lady Hale, in the Supreme Court, had the monumental task of confronting the controversy posed by the definition of ‘fails to attend regularly’ in Section 444 (1) of the 1996 Act.5 She did so by addressing the context of the law from 1870-1944 and then from 1944 to the present. Additionally, the three possible meanings of the word ‘regular’ were addressed.



Lady Hale then addresses the history of this law and its relevance to section 444(1) of the 1996 Act. Between the period of 1870 - 1944, education did not have to be compulsorily

or regularly attended and thus the state was not under any obligation to provide ‘universal elementary education.’ 6



In an attempt to increase the general school attendance of children without insisting the ‘politically controversial’ idea of compulsory attendance of children everywhere, bye-laws were created through the 1870 Act,7 compelling children to ‘attend school, unless there was some reasonable excuse.’ 8



Here, Lady Hale referred to the High Court decision in Osborne v Martin9 in order to demonstrate that there was a level of parental responsibility involved in ensuring the regular attendance of children. This was despite the abundance of power possessed by parents in deciding whether their children would attend school or not, however they were restricted from exploiting the free education offered to their children.



Following this, the judge deals with the law since 1944. Many modifications were made since the enactment of this legislation, arguably the most important was the newly introduced, fixed list of circumstances in which absence was authorised. Thus, it became an offence for a parent to facilitate ‘their child failing to attend school regularly’ 10



Lady Hale then goes on to explain the possible three definitions of the word ‘regularly’. These included ‘at regular intervals’ for example, to attend church on a regular basis every Sunday. ‘Sufficiently frequently’ as illustrated by referring to an individual as a ‘regular’ at church services and ultimately, ‘in accordance with the rules’.



The judge does not take long to reject the initial interpretation of ‘at regular intervals.’ This is on account of it enabling children to maintain regular attendance despite attending late or not even attending everyday. Lady Hale indicates through the Hinchley v Rankin case,11 that in order for an individual to be a regular attender, they must attend for the duration of time imposed by the provider of education.

Thereafter, Lady Hale justifies with a tenfold of reasons why ‘sufficiently frequent’ is not established as the interpretation of regularly, in addition to not being the likely intention of Parliament. The ‘eighth, and above all’ reason is that ‘sufficiently frequent’ lacks the adequate certainty required to pursue a criminal offence.12 Similarly, the ninth and reason for ‘why the local authority appealed,’ is because of the impact of increasing disruption levels on teachers and other pupils as well as the affected child. Lastly, the likely intention of Parliament would not have been to create an act that granted ‘parents to take their children out of school in blatant disregard of the school rules.’ 13



Subsequently, the judge provides reasons for how the interpretation of ‘in accordance with the rules’ is the accurate interpretation. Put simply, all the reasons why ‘sufficiently frequent’ cannot be the correct interpretation, are the same reasons for why this interpretation is correct. The aim of this piece of legislation was to convey to parents the importance of children attending school. Furthermore, this particular interpretation lacks the aspect of subjectivity and thus expresses certainty in clarifying ‘what is and what is not an offence’ whereas the other interpretations fail to do so. 14



After establishing the true interpretation of ‘regularly’ as ‘in accordance with the rules’ from section 444(1) of the 1996 Education Act, she concluded the appeal could proceed. The judge established that the father did ‘have a case to answer’ and ‘should have been convicted of the offence…unless he could establish one of the statutory exceptions’.15













2. Do you find the decision to be convincing? Give reasons for your answer.


Mr Platt’s attempt to prove that his daughter regularly attends school, despite being taken on an unauthorised holiday during term time, has much in common with the Bromley case. 16 At the heart of these cases is the controversy surrounding the meaning of the word ‘regularly’ in relation to school attendance as stated under section 444(1) of the 1996 Act.



Superficially, the two cases manifest in complete contrast. In the Bromley case, three sisters were said to have not been attending school regularly because of two unauthorised holidays alongside further absences caused by living eight miles from school as a consequence of difficult family circumstances. 17 Mr Platt had taken his daughter on a single unauthorised holiday. However, his daughter’s mother had also taken her on an unauthorised holiday a few months prior. Mr Platt had since been issued with a fixed penalty notice in which he failed to pay.



Regardless, both cases have in common the fundamental issue of what is the true and proper definition of regularly in relation to school attendance. However, conflict between the cases arose regarding their focus upon the context and relevance of attendance of children throughout the school term. Thus, posing the question; does the entire years’ attendance have to be taken into account or can one unauthorised absence during the term lead to irregular attendance?



It is for these reasons surrounding the issue of ‘regular attendance’ that I find the Supreme Court’s judgment profoundly convincing.



In the Bromley case, although it was never categorically addressed, the definition of ‘regularly’ was seemingly understood to mean ‘sufficiently frequent.’ Thus, indicating Sullivan LJ took a more literal approach during the interpretation of the 1996 Act.18 Contrarily, Lady Hale interpreted the statute to mean ‘in accordance with the rules’, a much more purposive and appropriate approach to the interpretation of the Education Act 1996 than that of Sullivan LJ’s. 19

The judge, in response to the interpretation of ‘sufficiently frequently’, convincingly expressed a tenfold of reasons against this being the correct interpretation. The very plausible argument and all-encompassing reason was that for Parliament to create a statute that tolerated simple disobedience towards it, was simply incongruous. 20 This is reiterated and further justified by Lady Hale describing ‘sufficiently frequent’ and its impact as ‘a slap in the face to those obedient parents who do keep the rules.’ For example, Mary’s mother who found herself in a similar situation to Mary’s father, yet she was able to adhere to the consequences of her decision and pay the fixed term penalty. 21 Thus, to uphold the crux of Court’s purpose and role in defending continuity, this judgment is the only correct and principled one.



For me, it is unequivocal how Lady Hale demonstrates the progression of the various education acts since 1870. This I believe is to portray the exclusive intention of Parliament and the courts as being the enhancement of compulsory attendance alongside curtailing the excuses of poor attendance. Similarly, in a case involving Mr Brian Haw and the state, there was a similar issue regarding the interpretation of parliaments intentions through the statute in question. 22 The judges during this case also took a purposive approach after dismissing the lower court’s judgment, similar to that of Lady Hale, indicating further the UKSC’s decision is entirely convincing.



Unlike Sullivan LJ, who relies on ‘fact and degree’ in his judgement of ‘sufficiently frequent’ regular school attendance, 23 I agree with Lady Hale’s decision that refuses the lower courts’ judgments and establishes ‘in accordance with the rules’ as the correct interpretation whilst simultaneously ensuring legal certainty. 24



Secondly, the judgment of Platt clarifies the meaning and interpretation of such school rules relating to what became a highly controversial and precarious topic. This clarification would have come as an immense relief to schools and teachers across the country because of their newfound sense of security in their compelling ability be able to successfully and justly enforce attendance rules.


Matthew Purchase’s commentary on the positives of this case relating to UK-wide schools moving forward on such dilemmas are particularly germane. He claims the judgment reached by the UKSC ‘has the advantage of clarity and of promoting the educational advancement of children.’ 25 I suspect that this conjecture had been reached through the argument made by Lady Hale against the interpretation of ‘sufficiently frequent’, that was too the argument by which the local authority appealed. 26



The rationale provided by the judge was that for children to successfully develop intellectually and reach their full academic potential, regular school attendance was essential. This is reiterated through section 444(1) of the Education Act 1996 emphasising the aspect of children receiving “full-time” education. By Mary acquiring 14 absences across the period of seven days she was not receiving “full time” education and thus Lady Hale overturning the decisions of the two lower courts is honourable and should be respected. 27



Is, however, Lady Hale truly implying that a criminal offence is committed if a child misses or is late to even one day of school, without ‘reasonable justification’? It would insinuate so, because of the judge’s definitive rejection of both lower cases’ judgments where the entire school year’s attendance was taken into account. Evidently if ‘regularly’ is to mean ‘in accordance with the rules,’ and the rules of the school indicate a child has to attend during such established periods of time, they are indeed committing a statutory offence by even missing a singular day of school. 28



Nevertheless, Lady Hale engages with this issue. She proposes commensurate examples of other ‘trivial breaches of the law that can lead to criminal liability’ including stealing a bottle of milk. She guilelessly implies that ‘sensible prosecution policy’ is the most suitable response. If common sense is to prevail it will find this argument conceivable as it is indeed nonsensical to prosecute a parent for the possibility of their child missing one day of school. 29



To conclude the compelling precedent set by this Lady Hale, in agreement with the other judges is one of upmost clarity and practicality in assisting the Courts’ adoption of the interpretation of this statute. It is an utterly convincing judgment as the best interests of everyone affected are affirmed and the true conceivable intention of parliament prevails.

























Bibliography

A Turner and others, ‘Butterworths Stone's Justices' Manual 2019’ (150th edn, LexisNexis Butterworths 2019) 7.



Matthew Purchase, Case Comment: Isle of Wight v Platt [2017] UKSC 28 < http://ukscblog.com/case-comment-isle-of-wight-v-platt-2017-uksc-28-part-two/ > Accessed 20th November 2019.





(i) Cases

Hinchley v Rankin [1961] 1 WLR 421.


Isle of Wight v Platt [2016] EWHC 1283 (Admin).

Isle of Wight v Platt [2017] UKSC 28.

London Borough of Bromley v C [2006] EWHC 1110 (Admin), [2006] ELR 358.

Osborne v Martin (1927) 91 JP 197.

R (Haw) v Secretary of State for the Home Department [2006] EWCA Civ 532, [2006] QB 780.



(ii) Legislation and other instruments

The Elementary Education Act 1870.

The Education Act 1996.