Section 128 Checks for School Governors

As school governors, you will be aware of your responsibility to ensure that your school has carried out certain checks before employing a teacher. This is central to your wider duty to safeguard children and keep them protected from harm. However, it is important to remember that additional checks are required for staff involved in the management of a school and school governors. 

In this blog, we will explain the Section 128 Check and how this helps to determine a person’s suitability for the role of managing or governing a school. 

What are Section 128 Checks?

Section 128 Checks reveal whether a person is banned from being involved in the management and governance of schools. The check refers to the Education and Skills Act 2008, section 128, under which the Secretary of State for Education can prohibit individuals from taking part in the management of schools.

Section 128 Checks complement DBS Checks by looking at the parts of a person’s history that may not be criminal, but still give cause for concern. For example, an individual may not have committed a crime by breaching the code of ethics set out by their professional body, or undermining mutual respect for those of different faiths, however you still wouldn’t want them associated with your school. For this reason, the Section 128 Check is considered an essential part of a school’s safer recruitment, selection and pre-employment vetting process. 

Who is eligible for Section 128 Checks?

Academies

Academies, free schools and independent schools must carry out Section 128 Checks for those who are involved in the management of the school, including: 

• Academy trust members and trustees
  
• Individuals who sit on committees or local governing bodies (LGBs) with delegated responsibilities
  • This may include local governors on LGBs, or individuals who sit on trust committees but are not trustees (sometimes called associate members)
    
• Academy staff engaged in management positions, which includes the following:
  • Headteacher
  • Deputy headteacher
  • Assistant headteacher

Other positions may also require a check, depending on the responsibilities the person holds. This is set out in paragraphs 232, 256, 257, 322 and 325 of Keeping Children Safe in Education (KCSIE) 2023. Additionally, the requirement for trust members to have this check is set out in paragraph 1.4 of the Academy Trust Handbook. 

Maintained Schools

Following an update to KCSIE in 2018, maintained schools are now also expected to carry out a Section 128 Check for all school governors. 

The guidance states that ‘a person subject to a section 128 direction is also disqualified from holding or continuing to hold office as a governor of a maintained school.’ 

This is set out in paragraphs 260 and 315 of KCSIE 2023.

When is a Section 128 Direction issued?

A Section 128 Direction disqualifies a person from participating in the management of an academy, free school or independent school, and holding office as a governor of a maintained school. A Section 128 Direction can be issued on specific grounds where the type of conviction, caution, or conduct suggests they are unsuitable for the management of a school. These grounds include:

• Conviction of an offence under military disciplinary proceedings
• Being found not guilty of an offence by reason of insanity
• Conduct found to be in breach of professional standards by a professional body. 

Furthermore, Section 128 Directions can be issued if an individual has engaged in conduct that undermines the British values of:

• Democracy
• Rule of law
• Individual liberty
• Mutual respect and tolerance of those with different faiths and beliefs

This is set out in regulation 2 of The Independent Educational Provision in England (Prohibition on Participation in Management) Regulations 2014. 

How to carry out Section 128 Checks?

Although you should be aware of who needs a check, governors are not required to carry out the check themselves. For the benefit of your understanding, we have outlined how school staff will complete the check below:

New appointments

If the person requires an Enhanced DBS Check with Barred Lists, a Section 128 Direction will be disclosed if staff specify ‘child workforce independent schools’ in the parameters when they apply for the check. 

If the applicant does not require a DBS with Barred Lists, staff will need to use the DFE sign-in portal to carry out the check through the Teaching Regulation Agency.

Existing staff, governors, trustees and members

Again, staff will need to use the secure access portal to conduct the Section 128 Check through the Teaching Regulation Agency. As governors, trustees and members do not have a teacher reference number (TRN), staff will need to download a list of all the people with a Section 128 Direction and check against them.

 

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Section 128 Checks are one of the many checks your board should be familiar with as part of your commitment to safer recruitment and safeguarding. 

If you would like to learn more about your wider safeguarding responsibilities, One Education can offer Safeguarding Training and other professional development opportunities for school governors and trustees. 

Please get in touch for more information.