Clear as mud – government changes to absence rules for Traveller school children creates chaos

Gypsy and Traveller parents are up in arms after recent changes to the official government school attendance guidance has led to some councils only allowing children who are permanently on the road to take authorised time out of school to go travelling.

The changes to the guidance that allows authorised absences for travelling children – known as the T code – were brought in under the previous government but will now come into force next school term under the new government. The actual law – or legislation – that the guidance refers to hasn’t changed since 2011, its just the guidance that has changed.

In the previous T code guidance, children who were “Roma, English and Welsh Gypsies, Irish and Scottish Travellers, Showmen (fairground people) and Circus people, Bargees (occupational boat dwellers) and New Travellers,” were allowed to take a number of authorised absences from school if their parents were travelling with their children for “occupational purposes,” – for example;  working as tradespeople; running stalls at fairs and festivals; working on funfairs, or trading horses at horse fairs and drives.

However, the new T code guidance doesn’t mention the different Traveller groups, and instead says the child is a “mobile child” and appears to say that the child should have “no fixed abode” as well to qualify – or does it?

In a further twist that is certain to cause confusion among both councils and Traveller parents, when the Travellers’ Times approached the government Department for Education ((DfE) for clarification, they told us that: “There is no set definition of a ‘fixed abode’, and this can still be interpreted by councils.”

This means that the new guidance could effectively create a post-code lottery for Traveller parents, with some councils using the old interpretation which was that if a child was travelling, it was temporarily of ‘no fixed abode’, even if it had a permanent address or base to return to afterwards; and to other councils who may now use the new guidance to limit the use of the T code to only apply to children who are permanently travelling and who have no fixed address at all.

“This makes no sense and completely open to misinterpretation,” said Education worker and Romany Gypsy campaigner Sally Barter on the Travellers’ Times Facebook page, as news of the first effects of the new guidance were starting to leak out. “How can such an important piece of guidance for professionals and (councils) be so unusable?”

Indeed, the new guidance doesn’t do what it says on the tin and gives no government guidance at all on a key part of the law it’s meant to be guidance for – which is section 444 of the Education Act 1996. So, councils now have to define ‘fixed abode’ themselves with no legal definition to draw upon, and no steer from the DfE either.

Yet the government DfE told the Travellers’ Times that the change to the guidance was made to make the use of the T code “clearer,” which is a joke, as the guidance is now as clear as mud compared to the previous guidance.

The DfE added that: “A full 6-week public consultation was conducted on the draft regulations and guidance in 2022 and language amends were made following feedback from parents, schools and local authorities suggesting inconsistency in how the existing guidance is applied.”

However, reports of “inconsistencies” in the use of the new guidance on the T code by councils and schools are already coming in, even before the next school term starts.

The Travellers’ Times was contacted by Suzanah Buckland, a Romany Gypsy grandmother who lives near Swindon and whose grandchildren go to a small primary school that comes under the control of Wiltshire Council. Her grandchildren and all the other Traveller children have had the T code removed by the school because they have a permanent address and so therefore do not count as ‘no fixed abode’, the head teacher told them in a letter sent only to the parents of the 19 Traveller children in the school.

The school also included information from Wiltshire Council which again refers to a child having ‘no fixed abode’ when accessing the T code.

Suzanah Buckland, who has now started the Facebook group Traveller School to raise awareness about the change to the T code, told us that taking the T code days away could destroy the Traveller way of life – or lead to Traveller parents taking their children out of school completely.

“If our children are getting this taken away what are Traveller people going to do?” she added.

“If we cannot take our children out of schools for Traveller events then the events would suffer with people attending and be at a risk of closing, and how could the men go away working and not take their family? 

It’s our rights being taking away once again. We are an ethnic minority, and our nomadic way of life is being taken away.”

The Travellers’ Times approached Wiltshire Council to ask them why they had ordered the schools to apply the T code in a different way that would exclude most Traveller children – because we all know that most Travellers don’t travel permanently nowadays, and instead go travelling from fixed addresses, whether they be sites, houses, or bases.

Cllr Laura Mayes, Cabinet Member for Education and Skills at Wiltshire Council replied: “We shared the DfE guidance with our schools following requests for information on what the changes mean. We sent information on how leave of absence is changing across the board which includes the DfE guidance on T codes and how evidence may be required in some circumstances.  We encouraged headteachers to share our letter with all their parents and carers, so they are aware of the DfE changes to leave of absence before the start of the new school year. In Wiltshire we provide support and advice to schools and families in our GRT communities. This is delivered through our Ethnic Minority and Traveller Achievement Service and a dedicated Education Welfare Officer who both have close and positive links with families.”

(The Travellers’ Times also asked Wiltshire Council if it was right that a head teacher should single out Traveller parents in a letter and virtually accuse them of lying to the school – but the council ignored that part of our press request)

The Travellers’ Times was also contacted by worried parent Sam Spencer, whose child was also denied the use of the T code by her school in Matlock, Derbyshire, who has already complained to the DfE.

Sarah Spencer also complained to the charity Friends, Families and Travellers (FFT), who wrote to the school’s head teacher saying that the school’s interpretation of the T code guidance was both wrong and could get them into hot water by breaking equalities laws.

In the letter to the school, a case worker for FFT wrote (their emphasis):

“I must take this opportunity to clarify that the guidance must be interpreted as the mobile child being of no fixed abode whilst the parent(s) is engaged in a trade or business of such a nature as to require them to travel from place to place. The guidance is not designed to exclude families who have a fixed address, but who still travel for occupational purposes.”

The Travellers’ Times approached FFT for comment. A spokesperson, who told us that they were receiving an increasing number of calls from people concerned about the T code changes, said: “We’re continuing to engage our partners and the Department for Education to make sure any changes to the T-code do not negatively impact Gypsy and Traveller families.”

Another problem that schools and councils face because of the new guidance, is that interpreting the guidance to exclude children who had a fixed address that they travelled from could break equalities laws. This is backed up by expert written advice from a top lawyer – which was sent to us by Sarah Spencer. 

When addressing the use of the T code to exclude Gypsy, Traveller and Showmen children who have a fixed address from accessing the T code, the lawyer writes in his legal opinion that:

“If (the guidance) had limited Code T to those of no fixed abode, (it) would have interfered with the article 8 (European Convention of Human Rights) as explained by the Grand Chamber of the European Court of Human Rights in Chapman v United Kingdom namely the need to give “some special consideration should be given to their needs and their different lifestyle”. In the case of Travelling Showpeople it would have excluded the whole group, since all have a base from which they travel, normally at the same location as where they store their rides, etc..”

So there we have it – the new guidance, which was hurriedly published in the dying days of the previous government after a swift 6 week ‘consultation’, which is now being applied by the new government, and – according to the Government is meant to make things “clearer”, is in danger of getting schools and councils sued for Human Rights abuses if interpreted in a particular way, because after all – there are a lot of lawyers out there specialising in Gypsy, Traveller and Equalities laws who have – and will again – take on both councils and the government when the right client comes along.

This should concern the new government more than it appears to do. After all, the new government supposedly prides itself on its recognition of the European Convention on Human Rights – which the UK is signed up to – and is led by Prime Minister Keir Starmer – who was formerly a top lawyer himself. A successful challenge to the new T code guidance based on human rights laws would be embarrassing.

The new Government should also be more concerned that the new guidance was not discussed with its very own DfE GRT stakeholder group – which is made up of Gypsy, Roma and Traveller parents and education experts, which is there to advise the DfE and to stop them doing something stupid and/or discriminatory – like publishing the new T code guidance. The DfE instead bypassed its expert GRT panel and instead rushed out a hurried six-week public consultation – which seems to have been missed by most GRT organisations and Gypsy and Traveller parents.

This was confirmed by the Traveller Movement who, writing on the Travellers’ Times Facebook page, said:

“It is great to see Travellers' Times has requested a statement from the DfE, our understanding is also that this change has come in with no consultation. We have put in four parliamentary questions with Baroness Whitaker (who leads the Parliamentary group that supports Gypsies, Roma and Travellers) which should be back by 6th August. 

Our Chair Pauline Anderson who is also the chair of the DfE’s Gypsy, Roma and Traveller Stakeholder Group and is working with the Department to get to the bottom of this. 

We have also written to the Minister.

Our understanding (from speaking to Traveller Education Officers and others who work closely in the field) is that (…) the T code has been changed to a 'mobile child' specifically with 'no fixed abode'. 

This has been taken by councils as applying to no one with a permanent address - we have been sent many letters received by families which confirms this. 

We are working hard to ensure this gets sorted - any help you can give will be amazing! Complain to the Department or write to your MP!”

TT News

(Lead photo: Stock photo of crowds at Kent Horse Fair, by Eszter Halasi for the Travellers’ Times)

Research for this article follows:

Our press request to the Department of Education:

Hi DfE press office,

Here is our request for comment as promised:

Background

On February 29th this year, the DfE published new statutory guidance ‘Working together to improve school attendance’, which comes into force on the 19th August 2024.

As part of the new guidance – the ‘T’ code, intended to support the children of parents who travelled for occupational reasons, was changed from the previous guidance, which was this:

Code T: Traveller absence

230. A number of different groups are covered by the generic term traveller – Roma, English and Welsh Gypsies, Irish and Scottish Travellers, Showmen (fairground people) and Circus people, Bargees (occupational boat dwellers) and New Travellers.

231. This code should not be used for general absences by those groups. It must only be used when the pupil’s parent(s) is travelling for occupational purposes and the school has granted a leave of absence following a request from the parent. This code should not be used to record any other types of absence by these groups.

232. Pupils from these groups whose parent(s) do not travel for occupational purposes are expected to attend school as normal. They are subject to the same rules as other pupils in terms of the requirements to attend school regularly once registered at a school.

To this:

Code T: Parent travelling for occupational purposes

351. The pupil is a mobile child and their parent(s) is travelling in the course of their trade or business and the pupil is travelling with them. A mobile child is a child of compulsory school age who has no fixed abode and whose parent(s) is engaged in a trade or business of such a nature as to require them to travel from place to place.

352. Schools should not unnecessarily ask for proof that the parent is travelling for occupational purposes, this should only happen when there are genuine and reasonable doubt about the authenticity of the reason for absence given. If there is doubt over the reason given, the school may ask for proof that the family are required to travel for occupational purposes during the period of absence.

This has caused massive alarm among Gypsies and Travellers (and Showmen) we have spoken to, and some councils have already written to parents who have children with the T code saying that the code will be withdrawn unless the child has no fixed abode – which is the most substantive change. Gypsies and Travellers often travel to horse fairs and for work, to run funfairs and to work the spring/summer festival circuit (ie occupational reasons) from authorised permanent sites, and from bricks and mortar housing – so will have a permanent address. Very few Travellers live permanently on the road and have no fixed abode.

It is being seen by many in our communities as a direct attack on the Gypsy and Traveller way of life.

We also have comment from both Gypsy and Traveller education experts and from Traveller parents that suggest this change will mean that many parents who wish to continue their Traveller traditions will simply elect to home educate their children and withdraw them from school altogether.

We also have as yet unverified claims that the DfE GRT Stakeholder Group was not consulted by the DfE before the guidance was changed and has only just become aware of it.

We also have verified evidence that at least one LEA (Wiltshire County Council) has been sending the new guidance to schools and that schools have then sent letters to parents with T code children, warning them that they will no longer be able to use the T code if they are registered at the school from a permanent address and that they must be of no fixed abode regardless of whether they are travelling for occupational purposes or not.

We have as yet unverified claims that other LEA’s are following the example of Wiltshire CC.

We have verified claims that one normally forward-thinking LEA has called a meeting with its internal GRT stakeholder group to discuss the new changes to the T code.

Questions

The new guidance will become statutory on the 19th August. What Acts of Parliament does the determination that a child must be of no fixed abode to now gain the T code rely on?

Why was the T code changed?

Will the DfE look again at this guidance?

Did the DfE consult with its own GRT stakeholder group – or indeed with any GRT representative organisation – before making the changes to the T code?

If not, will the DfE withdraw the guidance pending a proper consultation with GRT stakeholders?

Were any equalities assessments undertaken on the effects of the change to the T code?

Deadline

Our deadline is 5pm Friday 26th July. However, to encourage a substantive response as possible we are willing to extend that deadline if requested.

Regards

Editor

Travellers’ Times

And the DfE full reply:

• The rules around the use of code T have not changed, but they have been made clearer in new regulations and guidance from the beginning of the school year 2024/25.

• A full 6-week public consultation was conducted on the draft regulations and guidance in 2022 and language amends were made following feedback from parents, schools and local authorities suggesting inconsistency in how the existing guidance is applied.

• The new definition more clearly links back to the defence set out in section 444(6) of the Education Act 1996 which recognises that children without a fixed abode may need to be absent when travelling with their parents for occupational reasons.

• There is not set definition of a ‘fixed abode’, and this can still be interpreted by councils.

• Parents of Gypsy, Roma, and Traveller (GRT) children of compulsory school age have a legal duty as any other parent to ensure that their school registered child attends school regularly.

• There is a defence under section 444(6) of the Education Act 1996 against prosecution that is linked to the mobility of their family, where the parent can prove that they are engaged in a business or trade that requires them to travel, they have no fixed abode and that the child has attended school for at least 200 sessions in the preceding 12 months.

• On days when a pupil’s family is known to be travelling for occupational purposes and they do not have a fixed abode, but it is not known whether the pupil is attending educational provision, then the school must use code T to record the absence. Code T must not be used for any other type of absence for GRT pupils.

• Pupils from these groups are subject to the same rules as other pupils in terms of the requirements to attend school regularly once registered at a school.