Is your child struggling with attendance, worried about fines? What the law actually says.

Attendance Difficulties: What the Law Actually Says (and What Schools Must Do)

School attendance has become one of the most misunderstood — and misapplied — areas of education law, particularly for children with SEND, mental health needs, trauma histories, or unmet provision.

Parents are increasingly being threatened with fines, referrals, or safeguarding action when their child is unable to attend school — not unwilling.

This blog sets out what the law and statutory guidance actually say, and just as importantly, what they do not say.

1. Attendance Is Not the Same as Compliance

Yes, education is compulsory — but attendance at a particular school is not the legal duty placed on parents.

Under Section 7 of the Education Act 1996, parents must ensure their child receives a:

“suitable, full-time education, appropriate to the child’s age, ability, aptitude, and any special educational needs.”

The law does not say:

A child must attend school at all costs

Attendance overrides health, disability, or trauma

Parents are at fault when a child is emotionally or medically unable to attend

Suitability is the legal test — not attendance statistics.

2. Statutory Attendance Guidance Is Mandatory, Not Optional

The Department for Education’s guidance “Working Together to Improve School Attendance” is statutory. Schools and local authorities must have regard to it.

This guidance makes clear that attendance difficulties should be addressed through:

Early identification

Understanding underlying causes

A supportive, graduated response

Multi-agency working where appropriate

Punitive responses are not the starting point.

3. Illness Includes Mental Health and Neurodivergence

Absence due to illness is a lawful and legitimate reason for non-attendance.

Crucially:

Illness includes mental health, anxiety, burnout, trauma responses, and SEND-related distress

Schools should not routinely demand medical evidence

Parental notification is normally sufficient unless there is reasonable doubt

Children experiencing emotionally based school avoidance (EBSA), autistic burnout, sensory overload, or trauma responses are not truanting.

Treating them as such is both harmful and unlawful.

4. SEND Changes the Legal Landscape Entirely

For children with SEND — particularly those with EHCPs — attendance cannot be separated from provision.

If a child is not attending because:

Their EHCP provision is not in place

The placement is unsuitable

Needs have escalated beyond what the school can meet

Then the issue is failure to secure provision, not parental failure.

Local authorities have an absolute, non-delegable duty under Section 42 of the Children and Families Act 2014 to secure EHCP provision.

Attendance enforcement must not be used to mask unmet need.

5. Registers Are Legal Documents — and Must Be Accurate

School attendance registers are legal records.

They must:

Use correct national attendance codes

Properly distinguish authorised and unauthorised absence

Reflect reality, not pressure

Incorrect coding — particularly marking health-related absence as unauthorised — can have serious legal consequences and should be challenged.

6. Enforcement Is a Last Resort — Not a First Response

Penalty notices, prosecution, and School Attendance Orders exist in law — but only after:

Support has been offered

Barriers have been explored

Reasonable adjustments have been made

SEND and health needs have been properly considered

Using enforcement where a child cannot attend due to disability or illness may amount to discrimination under the Equality Act 2010.

7. Children Missing Education ≠ Children Who Cannot Attend

There is a crucial distinction between:

Children missing education due to lack of provision

Children who are unable to attend school due to unmet needs

A child who is emotionally or medically unable to attend is not automatically a safeguarding concern — especially where parents are actively seeking support.

Misuse of safeguarding pathways in attendance cases is increasingly being challenged.

What Parents Should Know

You are not required to force a distressed or unwell child into school

Attendance must be considered alongside SEND law, disability law, and safeguarding duties

Schools and LAs must work with families, not against them

Attendance difficulties are often a signal of unmet need, not poor parenting

Final Thought

Attendance is an outcome — not a starting point.

When a child cannot attend school, the lawful response is support, adjustment, and provision, not punishment.

If you are facing attendance pressure, fines, or threats while your child’s needs are unmet, you are entitled to challenge this — and the law is very clear that you can.