Author: Sophie Lee (Clerk to Governors)

It is very unlikely that a school governor would ever be held personally or financially liable, ie: responsible under the law for a failing or error which leads to a prosecution.

Governors act as a group and any powers delegated to committees or individual governors must be agreed by the full governing body as a whole. This makes the whole group responsible for the decisions made.

The only situation where a governor could be liable is if they act criminally or dishonestly. The law states that governors in maintained schools will not be personally liable if they act in “good faith” – honestly, sincerely and with good intentions.

An obvious example that would not meet the standards of good faith is if a governor committed fraud because this would involve lying to others for personal gain.

“The governors of a school shall not incur any personal liability in respect of anything done in good faith in the exercise or purported exercise of their powers under subsection (3) or (6).”

[Subsections 3 and 6 explain that governors can spend the budget as they see fit or delegate spending power to the headteacher.]

School Standards and Framework Act 1998

There are also restrictions on what decisions can be delegated to individuals; for example, in a maintained school one governor alone cannot approve the first formal budget plan of the financial year. This law ensures that governors are jointly liable for major decisions made and act as one corporate body.

The fact that governors are protected from personal liability is also confirmed by the DfE in their governance guides for both maintained schools and academies.

Most clerks record the result of votes in general terms (“governors voted in favour of x”) rather than recording the specific vote of each individual governor, so your own personal vote will probably not be minuted unless you ask for it to be recorded.

Any contracts, leases or agreements should be entered into in the name of the governing body itself rather than any particular governor.

In a maintained school the lack of personal liability for governors should also be confirmed in your local Scheme for Financing Schools, which explains the responsibilities of governing bodies and the local authority when a school has a delegated budget. This is what my local scheme says about liability.

“The School Standards and Framework Act gives governors legal protection, both individually and collectively, from any personal liability for their decisions and actions undertaken in good faith.

“It also exempts governors from liability for negligent action directly attributable to the spending of the school’s delegated budget, for example if a faulty piece of equipment were purchased resulting in personal injury.”

Southampton City Council Scheme for Financing Schools

If something does go badly wrong in a school, for example a serious breach of health and safety, any maintained school will be protected by liability insurance provided by their local authority. (Aided and trust schools may be required to arrange their own insurance.)

Liability in Academies

In academies the small group of academy trust members take on limited financial liability, not the trustees. The trustees are equivalent to maintained school governors; the members are equivalent to company shareholders.

The current model articles of association (June 2021) explain that even for members their financial liability is limited to a maximum of £10 if the trust is closed down.

“The liability of the members of the academy trust is limited. Every member of the academy trust undertakes to contribute such amount as may be required (not exceeding £10) to the academy trust’s assets if it should be wound up while they are a member or within one year after they cease to be a member.”

Model Articles of Association (June 2021)

Academies are required by the Academy Trust Handbook to “have adequate insurance cover in compliance with its legal obligations or be a member of the academies risk protection arrangement (RPA)”.

The risk protection arrangement includes governors’ liability insurance. If the trust is not a member of the RPA the Handbook makes it clear it must take out alternative public liability insurance.

Yes. Both maintained schools and academies can choose to pay governor expenses.

Law for maintained schools says that schools with delegated budgets can pay expenses to both governors and associate members. (Your school almost certainly has a delegated budget, although the LA can take over a school’s budget if it has been seriously mismanaged.)

Payments can only be made for expenses that have been “necessarily incurred” while enabling someone to perform a governance duty.

“The governing body of a maintained school which has a delegated budget may determine to pay a member of that governing body or any associate member payments by way of allowance.

“Such payments by way of allowance are in respect of expenditure necessarily incurred for the purpose of enabling the governor or associate member to perform any duty.”

Roles, Procedures and Allowances (England) Regulations 2013

In schools without delegated budgets governors and associate members may be able to claim expenses from the local authority (LA), but this is at the LA’s discretion.

Model articles of association for academies (June 2021) allow academies to pay “reasonable expenses” to their trustees, although foreign travel expenses are excluded.

Check your own articles to see the rules at your trust. If you have local governing bodies in a multi-academy trust your trust board can decide whether to pay local governors expenses.

“A trustee may at the discretion of the trustees be reimbursed from the property of the academy trust for reasonable expenses properly incurred by them when acting on behalf of the academy trust, but excluding expenses in connection with foreign travel.”

Model Articles of Association (June 2021)

What types of expenses can governors claim?

Examples of appropriate expenses are listed below. They should only be paid if a receipt is provided as proof of expenditure.

Expense claims could cover:

• stationery
  
• postage
  
• photocopying
  
• parking charges when attending training courses or conferences
  
• printing at home (particularly the cost of printer cartridges)
  
• care costs for other dependant family members
  
• the cost of helping a governor participate in meetings or school life, such as help with understanding documents that are not in their first language or the use of technology to help someone with a hearing impairment
  
• subsistence costs such as food and drink
  
• other justifiable expenses at the discretion of the board.

Can a governor be paid to attend meetings?

In the majority of cases, no. Being a governor or trustee is almost always a volunteer role.

In maintained schools guidance on the Roles, Procedures & Allowances Regulations 2013 explains that governors “provide a voluntary service and cannot be paid for their role”.

Academies do have the right to pay trustees, but in almost all cases will not do so. More detail is provided in a separate article on paying governors.

However, governors can be paid when they are appointed to an interim executive board (IEB). This is a temporary governing body which is put in place to help struggling schools, such as those in special measures.

Can a governor be paid for loss of earnings?

In maintained schools expenses cannot cover a loss of earnings, for example paying a governor because they have to miss work to attend a board meeting.

The DfE Maintained Schools Governance Guide says that allowances “do not include loss of earnings for attending meetings”.

Employees are entitled to time off work to enable them to fulfil governance duties in maintained schools because school governance qualifies as a public duty under the law. There is no legal requirement to pay you while you are absent from work, however.

In academies the DfE link to a guide from the Charity Commission which says that although it’s technically possible for trustees to be paid for loss of earnings this is not a routine payment and would need express authorisation from either your articles or the Charity Commission.

Must we have a governor expenses policy?

Maintained schools must have a written policy on governor expenses as it is one of the policies listed in the DfE Maintained Schools Governance Guide. The Governance Guide refers to it as a “governor allowances” policy rather than an expenses policy.

The policy should include a claim form and instructions on who to submit receipts to for payment.

Academies do not need to have a governor expenses policy according to the DfE Academy Trust Governance Guide. In practice they should still have one to ensure volunteers are not out of pocket and know what they can claim.

Travel Expenses

Governors should be allowed to claim travel expenses but these will be minimal unless they live miles away from the school.

Some schools say that travel claims will only be paid if a governor has to travel outside of the local area, eg: the county or local council district. This will avoid very small expense claims.

Governors in maintained schools claiming travel expenses for the use of “private cars, pedal cycles and motorcycles” are limited by law to the HMRC Approved Mileage Rates. As of 2020 these rates were as follows.

Car: 45 pence for the first 10,000 business miles in a tax year, then 25 pence for each subsequent mile.

Motorcycle: 24 pence per mile.

Bicycles: 20 pence per mile.

“Payments for travel expenses incurred through the use of private cars, pedal cycles and motorcycles must be at a rate not exceeding Her Majesty’s Revenue and Customs’ approved mileage rate as published from time to time.”

Roles, Procedures and Allowances (England) Regulations 2013

Yes. Anyone on the section 128 list is banned from serving on a school governing body, so all maintained school governors and associate members, plus all academy members, trustees and local governors with delegated powers should have these checks in place.

A section 128 check will highlight anyone who is banned under the law from taking part in the management of any independent school, including academies.

Anyone on this list is also banned from being a governor in any school, whether it is independent or maintained. All governors and trustees must also have enhanced disclosure and barring service (DBS) checks.

The name “section 128” refers to section 128 of the Education and Skills Act 2008, which gives powers to the Secretary of State to ban people from managing an independent school.

The Law For Maintained Schools

Being on the section 128 list became disqualifying for governors at maintained schools when the Constitution and Federations (England) Amendment 2014 regulations came into force, amending the original Constitution Regulations from 2012.

The original 2012 law includes a long list of reasons which disqualify someone from being a governor.

The 2014 amendment adds one more disqualifying factor – if you are “subject to a direction of the Secretary of State under section 128 of the Education and Skills Act 2008″. An explanatory note to the law makes this clear.

“Regulation 6 amends the Constitution Regulations 2012 so that a person subject to a direction of the Secretary of State under section 128 of the Education and Skills Act 2008 is disqualified from holding office as a governor of a maintained school.”

Explanatory Note to the School Governance Constitution and Federations (England) Amendment 2014

The statutory guidance Keeping Children Safe in Education says maintained schools should check their governors under section 128.

As it doesn’t say maintained schools must check governors there is no legal requirement to do so, but schools still need to follow this advice unless they have a good reason not to.

“Governors in maintained schools are required to have an enhanced criminal records certificate from the DBS.

“Schools should also carry out a section 128 check for school governors, because a person subject to one is disqualified from being a governor.”

Keeping Children Safe in Education

Do associate members need section 128 checks?

Keeping Children Safe in Education says that maintained school governors should have section 128 checks but does not mention associate members. However, the law says that anyone on the section 128 list is disqualified from being both a governor and an associate member.

The section of the law that was amended in 2014 is called schedule 4. The wording of this schedule makes it clear that it applies equally to both governors and associate members in maintained schools.

“Any person who is disqualified from holding office as a governor of a school under this schedule is likewise disqualified from holding or continuing to hold office as an associate member of the governing body.”

Constitution (England) Regulations 2012

Therefore the slightly odd position is that it is up to each governing body whether they run a section 128 check on associate members, even though associates are banned from the board if they do actually appear on the section 128 list.

(This is similar to the status of associate members in regard to DBS checks because governors must be DBS checked but associate members do not have to be, even though they are disqualified if they have committed certain crimes.)

My own local authority recommends that the same checks are run on associate members as on governors, which seems sensible and I suspect is the recommendation of most LAs. Therefore governing bodies should run section 128 checks on associate members.

The Law For Academies

The relevant law for academies is section 4 of the Education (Independent School Standards) Regulations 2014. This law is explained in the statutory guidance Keeping Children Safe in Education.

Keeping Children Safe in Education says that academies must check anyone who takes up a “management position” against the section 128 list; it is a legal requirement.

“Independent schools, including academies and free schools, must check that a person taking up a management position as described at paragraph 237 is not subject to a section 128 direction made by the Secretary of State.”

Keeping Children Safe in Education

The definition of a “management position” is given in paragraph 237 of KCSIE and I’ve quoted the whole paragraph below. It makes clear that all academy trustees must have section 128 checks.

“A section 128 direction prohibits or restricts an unsuitable individual from participating in the management of an independent school, including academies and free schools.

An individual who is subject to a section 128 direction is unable to:

– take up a management position in an independent school, academy, or in a free school as an employee;

– be a trustee of an academy or free school trust; a governor or member of a proprietor body of an independent school; or,

– be a governor on any governing body in an independent school, academy or free school that retains or has been delegated any management responsibilities.”

Keeping Children Safe in Education

Do local governors need section 128 checks?

KCSIE says that any local governor on a board with “delegated management responsibilities” is banned from their role if they are on the section 128 list. If the local governing body has any decision-making powers then the local governors must be checked.

On the other hand if a local governor in a multi-academy trust sits on a local governing body that is purely advisory and does not have decision-making powers there is not a requirement to check them against the section 128 list.

Do academy members need section 128 checks?

Yes. The Academy Trust Handbook makes it clear that academy members must be checked against the section 128 list.

“Trusts must ensure that their members are not currently subject to a direction made under section 128 of the Education and Skills Act 2008 which prohibits individuals from taking part in academy trust management, and that they do not appoint as a member, a person who is currently subject to a section 128 direction.”

Academy Trust Handbook

How To Make Section 128 Checks

Maintained schools should log on to the Teacher Services’ webpage from the Teaching Regulation Agency.

Academies can check the section 128 list when applying for a DBS check, as long as ‘children’s workforce independent schools’ is selected from the options. If academies need to run the check separately from a DBS application they can also use the Teacher Services’ webpage.

How often should section 128 checks be made?

There are no regulations on whether section 128 checks should be repeated at intervals. They are similar to DBS checks in that they are only 100% accurate at the time the check is carried out, so a governor could commit a hate crime next week and be banned from governance, but if you checked the section 128 list today their name would not appear.

Your local authority or academy trust may have a policy as to whether repeated checks are needed. Some LAs advise that DBS checks should be repeated every four years, so it might make sense to also check the section 128 list at the same interval.

What is the difference between the children’s barred list and section 128?

In a school, an enhanced DBS with children’s barred list check will highlight whether someone is banned from working with children. This list used to be known as List 99 before it became the ISA (Independent Safeguarding Authority) barred list and then finally the DBS children’s barred list.

A separate list is held under section 128 to record if someone is banned from managing a school.

As governors do not take part in “regulated activity”, for example supervising children on a regular basis, their DBS checks do not need to include a check of the list barring people from working with children. However, because they are part of the management of the school, section 128 checks should be made. This is explained in statutory guidance.

“As barred list information is required to be requested only for those school governors who are engaging in regulated activity, when proposing to recruit a governor who will not work in regulated activity, schools and colleges should use the secure access portal to check whether the person is barred as a result of being subject to a section 128 direction.”

Keeping Children Safe in Education. The secure access portal referred to is the Teacher Services’ webpage.

Why would someone be barred under section 128?

The reasons for a bar under section 128 are contained in the snappily titled Independent Educational Provision in England (Prohibition on Participation in Management) Regulations 2014. A person may be barred from managing a school if (s)he:

• has been found not guilty of an offence by reason of insanity
  
• has a conviction of an offence in any service disciplinary proceedings
  
• has a conviction of a service offence within the meaning of the Armed Forces Act 2006
  
• has engaged in conduct aimed at undermining the fundamental British values of democracy, the rule of law, individual liberty, and mutual respect and tolerance of those with different faiths and beliefs
  
• has been found to be in breach of professional standards by a professional body
  
• has engaged in conduct that is so inappropriate that, in the opinion of the appropriate authority, it makes the person unsuitable to take part in the management of an independent school.

Yes. All maintained school governors and academy members, trustees and local governors must have enhanced disclosure and barring service (DBS) checks, also known as criminal record checks.

In maintained schools this check must be applied for within 21 days of the governor’s appointment or election. You should also read Do governors need section 128 checks?

If your school has already run a DBS check on the individual there is no need to re-check them just because they have become a governor, as long as the check was at the enhanced level.

Teachers and other school staff, for example, will have already been checked, as will parents who have volunteered for certain roles at the school such as reading with children.

For maintained schools the DBS check requirement comes from an amendment made in 2016 to the 2012 Constitution Regulations.

“Where a governor is elected or appointed on or after 1st April 2016 and does not hold an enhanced criminal record certificate, the governing body must apply for such a certificate in respect of that governor within 21 days after his or her appointment or election.”

Constitution and Federation (England) Amendment 2016

For academies the relevant law for all trustees apart from the chair is quoted below. The model articles of association (June 2021) also say that members, trustees and local governors must have enhanced DBS checks.

“An individual, not being the chair of the school, who is a member of a body of persons corporate or unincorporate named as the proprietor of the school [meets suitability standards if] the chair of the school makes…where relevant to the individual, an enhanced criminal record check.”

Education (Independent School Standards) Regulations 2014

“A member shall cease to be a member if that member has not provided to the chair a criminal records certificate at an enhanced disclosure level.

“A person shall be disqualified from holding or continuing to hold office as a trustee if that person does not provide the chair with a criminal records certificate at an enhanced disclosure level.
[Note – this paragraph is article 78.]

“Articles 77 to 78…also apply to any member of any committee or delegate of the trustees including a local governing body.”

Model Articles of Association (June 2021)

An academy chair of trustees must have an enhanced DBS check that is countersigned by the Secretary of State. Academy chairs should apply for their countersigned DBS check before they take up the role using the form available from the Education and Skills Funding Agency.

“[Suitability standards are met if] an individual who is the chair of the school…[provides] an enhanced criminal record check, countersigned by the Secretary of State.”

Education (Independent School Standards) Regulations 2014

Are DBS checks free for governors?

DBS checks for almost all school governors and academy trustees are free because all standard and enhanced level DBS checks are provided free of charge to volunteers.

“Applicants do not pay for standard or enhanced disclosure checks for volunteer positions.”

DBS Check Application Process for Volunteers

The definition of volunteer is given in law. Note that the volunteer can receive expenses.

“‘Volunteer’ means a person engaged in an activity which involves spending time, unpaid (except for travel and other approved out-of-pocket expenses), doing something which aims to benefit some third party other than or in addition to a close relative.”

Police Act 1997 (Criminal Records) Regulations 2002

Therefore you only need to pay for a DBS if a governor/trustee is being paid for their service. This would be rare, but is possible if for example the governor is serving on an interim executive board (IEB). A separate article looks at when governors can be paid.

Governors Must Have Enhanced DBS Checks

Note that all references above are to an enhanced DBS check. Keeping Children Safe in Education explains that there are three levels of DBS check available to people working with children. An enhanced check is at level two.

(The DBS service also provide a “basic check” showing unspent convictions and cautions but this basic check is only for job roles that do not involve work with children.)

1. A standard check – a check of the police national computer records of convictions, cautions, reprimands and warnings.
   
2. An enhanced check – a check of the police national computer records plus additional information held by police such as interviews and allegations. (Additional information will only be disclosed where a chief police officer reasonably believes it to be relevant and considers that it ought to be disclosed.)
   
3. An enhanced check with children’s and/or adults’ barred list information – a check of the police national computer records, plus additional information held by police, plus a check of the DBS children’s barred list plus a check of the DBS adults’ barred list.

The “barred lists” mentioned in the final bullet point are two separate lists of people who are banned from working with either a) children or b) vulnerable adults. The list of people banned from working with children used to be called List 99 before becoming the ISA (Independent Safeguarding Authority) barred list and finally the DBS barred list.

Should we check if governors are on the children’s barred list?

No, unless they also have another role in school that gives them frequent or unsupervised contact with children.

Anyone involved in regulated activity, such as working with children unsupervised, must have a children’s barred list check, but the statutory guidance Keeping Children Safe in Education states that simply being a governor does not qualify as a regulated activity.

“Governance is not a regulated activity and so governors do not need a barred list check unless, in addition to their governance duties, they also engage in regulated activity.”

Keeping Children Safe in Education

In fact, because there are strict rules concerning the release of information held by the DBS, schools are not able to check governors against the children’s barred list even if they wish to unless the governor holds an additional role in school that qualifies for the check.

“The DBS cannot provide barred list information on any person, including volunteers, who are not in, or seeking to engage in regulated activity.”

Keeping Children Safe in Education

However, schools should be checking governors against the section 128 list, a list of people who are banned from managing an independent school (including academies) or being a governor in any school or academy.

Should we check if governors have the right to work in the UK?

In a maintained school there is no need to check if a governor or associate member has the right to work in the UK.

In an academy you must check that trustees and local governors have the right to work in the UK. This requirement comes from the law quoted below.

Academy trustees are volunteers so this may seem like an odd requirement, but academies are both independent state-funded schools and companies simultaneously and this law applies to all independent schools, both privately-owned and state.

“The standard in this paragraph is met in relation to an individual who is the chair of the school if the Secretary of State makes the following checks — checks confirming the individual’s identity and their right to work in the United Kingdom.

“The standard in this paragraph is met in relation to an individual (“MB”), not being the chair of the school, who is a member of a body of persons corporate or unincorporate named as the proprietor of the school if the chair of the school makes the following checks relating to MB—

(i) where relevant to the individual, an enhanced criminal record check

(ii) checks confirming MB’s identity and MB’s right to work in the United Kingdom.”

Education (Independent School Standards) Regulations 2014

Do associate members need DBS checks?

The 2016 legislation for maintained schools refers only to governors and does not mention associate members. It will be up to each governing body to decide whether to run a DBS check on associate members.

You should note that although there is no legal requirement to run DBS checks on associate members, all of the disqualification criteria related to criminal activities apply to both governors and associate members in maintained schools. If an associate member commits a particular crime they are automatically disqualified from the board.

(Academies may have members of committees who they refer to as “associate members”. These people must have DBS checks because all academy committee members must be checked.)

The statutory guidance Keeping Children Safe in Education notes that associate members in maintained schools are not legally required to have DBS checks but does not contain a recommendation as to whether schools should check them anyway. The following paragraph is the only information on associate members provided.

“The School Governance (Constitution and Federations) (England) (Amendment) Regulations 2016 made enhanced DBS checks mandatory for maintained school governors but not associate members.”

Keeping Children Safe in Education

Does the clerk need a DBS check?

The clerk does not engage in “regulated activity” but will often work during school hours and may come into contact with children.

Keeping Children Safe in Education states that staff who regularly have “an opportunity for regular contact with children” but are not in regulated activity should have an enhanced DBS check with no check of the barred lists.

“As the majority of staff will be engaging in regulated activity, an enhanced DBS certificate which includes barred list information will be required for most appointments.

“For all other staff who have an opportunity for regular contact with children who are not engaging in regulated activity, an enhanced DBS certificate, which does not include a barred list check, will be appropriate. This would include contractors who would have the opportunity for contact with children and who work under a temporary or occasional contract.”

Keeping Children Safe in Education

What if a governor refuses the DBS check?

If a governor or associate member in a maintained school is asked by the clerk to make an application for a criminal records check but refuses they are automatically disqualified and cannot serve on the governing body. This is clear in the law.

Note that the first paragraph of law quoted below refers to someone holding office as a governor only. However, the second paragraph makes it clear that disqualification rules in this section of the law apply equally to associate members (apart from the rule that says governors must be 18 or over and not registered pupils at the school).

“A person is disqualified from holding or continuing to hold office as a governor at any time when the person refuses a request by the clerk to the governing body to make an application under section 113B of the Police Act 1997 for a criminal records certificate.

“Any person who is disqualified from holding office as a governor of a school under this schedule is likewise disqualified from holding or continuing to hold office as an associate member of the governing body unless the disqualification is under paragraphs 1 or 2 [which say a governor must be 18 or over and not a registered pupil].”

Constitution (England) Regulations 2012

In an academy the model articles (June 2021) state that anyone who does not give a DBS check to the chair cannot become a member, trustee or a committee member, including a local governor.

“A member shall cease to be a member if that member has not provided to the chair a criminal records certificate at an enhanced disclosure level.

“A person shall be disqualified from holding or continuing to hold office as a trustee if that person does not provide the chair with a criminal records certificate at an enhanced disclosure level under section 113B of the Police Act 1997.

“[These rules] also apply to any member of any committee or delegate of the trustees, including a local governing body, who is not a trustee.”

Model Articles of Association (June 2021)

Do DBS checks expire?

No, DBS checks have no official expiry date. There is no requirement in either the law or model articles to recheck governors after a certain period of time and the information revealed by the check is only 100% accurate on the date it was carried out.

Your local authority or academy trust may have a policy on whether governors should be rechecked after a certain number of years.

Some local authorities recommend applying for a new DBS check when a governor’s term of office is renewed, usually after four years, but it is up to schools to decide whether and how often they should rerun the check.

Can DBS checks be transferred?

Government guidance says that it is “the employers’ decision to decide whether to accept a previously-issued DBS check”. The decision will depend on factors such as how long ago the check was made and whether it is of the required level, eg: an enhanced or standard check.

If you join the DBS update service you can allow the school to see the latest version of your criminal record check online. Keeping Children Safe in Education confirms that this service “allows for portability of a certificate across employers”.

It also states that schools must do the following three things before using the service:

• obtain consent from the applicant to do so
  
• confirm the certificate matches the individual’s identity; and
  
• examine the original certificate to ensure that it is for the appropriate workforce and level of check, eg: enhanced certificate/enhanced including barred list information.

You need to register for the DBS update service when you are applying for a new check or within 30 days of your original DBS certificate being issued. The service is free for volunteers. In practice this service will probably only be useful if you are a governor in multiple schools or regularly visit schools in another capacity.

Can governors attend meetings before the DBS check comes back?

Yes. Governors can come to meetings and cast their vote before the DBS check has been completed. If a governor is visiting the school before their DBS has been completed they should be treated in the same way as any other visitor.

Law for maintained schools just says that DBS checks must be applied for within 21 days of a governor’s election or appointment, not that a governor can only take up their role once the check has been completed.

In an academy check whether your trust has set a deadline for the application of DBS checks, although of course the DBS should be applied for promptly whatever your deadline.

What if the 21-day DBS deadline is missed in a maintained school?

If a governor refuses a request from the clerk to undertake the enhanced DBS check they are disqualified from the board.

However, it is not clear in the law what happens if the governing body or the school itself misses the 21-day deadline to apply for the DBS check, perhaps because they did not realise the deadline existed or because staff have been off sick.

I asked the DfE what boards should do if they miss the deadline and their answer is below.

“Thank you for your email. You have alerted us to an issue regarding DBS checks on governors not taking place within the 21-day timeframe as set out in the 2016 regulations.

“We suggest that the school applies immediately for an enhanced DBS check to rectify the issue. The clerk, if they have not already, should also alert the chair of the board in case any further issues arise.”

DfE Email To Me, October 2023

Should governor DBS checks be recorded on the single central record?

The statutory guidance Keeping Children Safe in Education explains that the single central record (SCR) must cover all staff. In academies it must also cover anyone on the “proprietor body” which means all academy members and trustees.

“The single central record must cover the following people:

– all staff

– for independent schools, all members of the proprietor body. In the case of academies and free schools, this means the members and trustees of the academy trust.

“Whilst there is no statutory duty to include on the single central record details of any other checks, schools and colleges are free to record any other information they deem relevant.

“For example, checks for childcare disqualification, volunteers, and safeguarding and safer recruitment training dates.

“Schools and colleges may also wish to record the name of the person who carried out each check.”

Keeping Children Safe in Education

The guidance states that there is no statutory duty to record this information for other volunteers (such as governors and associate members in maintained schools or academy local governors) but schools can do so if they believe it is “relevant”.

It would be usual practice therefore to record any checks you make on the governing body in the SCR. This is confirmed by inspection guidance from OFSTED, quoted below.

“Where checks are carried out on volunteers, schools should record this on the single central record.”

Inspecting Safeguarding in Early Years, Education and Skills

Do local governors need DBS checks?

Yes. Model articles make clear that the requirement to have an enhanced DBS check also applies to “any member of any committee or delegate of the trustees (including a local governing body) who is not a trustee”.

What happens if a governor has criminal convictions?

In a maintained school their convictions should be checked against the list of disqualification criteria to see if they are automatically disqualified from serving as a governor under the law.

In an academy the model articles (June 2021) say that trustees are disqualified if they have been convicted of a “serious criminal offence”. The definition of a serious criminal offence is shown in the quote below.

“A person shall be disqualified from holding or continuing to hold office as a trustee where they have, at any time, been convicted of a serious criminal offence.

“’Serious criminal offence’ means any criminal offence excluding those which have been spent under the Rehabilitation of Offenders Act 1974 and excluding any offence for which the maximum sentence is a fine or a lesser sentence, except where a person has been convicted of any offence which falls under section 178 of the Charities Act 2011.”

Model Articles of Association (June 2021)

The articles also state that the chair can decide to disqualify a trustee based on other information in the DBS disclosure if the chair believes it makes the person “unsuitable” for the role. If the trustee disputes their disqualification the matter can be referred to the Secretary of State for a final decision.

“A person shall be disqualified from holding or continuing to hold office as a trustee if that person does not provide the chair with a criminal records certificate at an enhanced disclosure level under section 113B of the Police Act 1997 or if such a certificate discloses information which the chair considers would make that person unsuitable for their role.

“If a dispute arises as to whether a person shall be disqualified, a referral shall be made to the Secretary of State to determine the matter. The determination of the Secretary of State shall be final.”

Model Articles of Association (June 2021)

Maintained schools in England no longer have to provide a governors’ report, but you must do this if you are in Wales. Academies must provide an annual statement on governance with their annual accounts but this is not aimed at parents.

Note that the details of what schools and academies must publish online is covered in a separate article.

Governors’ Reports In Maintained Schools

The Education Act 2002 originally said that a “governors’ report” must be written annually. This law applied to maintained schools in England and Wales. It was amended by the Education Act 2005 to only apply to Wales.

“Once in every school year the governing body of a maintained school shall prepare a report (a “governors’ report”) dealing with such matters, and otherwise complying with such requirements, as may be specified in regulations.”

Education Act 2002 (section 30). This paragraph was amended by the Education Act 2005 so that it now refers only to maintained schools in Wales.

There also used to be a requirement under the Education Act 2005 that governors must publish a school “profile”, but this requirement has also been removed (under the Education Act 2011).

“The governing body of a maintained school in England shall prepare and publish a document (a “school profile”). Regulations may require the school profile to contain statements by the governing body as to prescribed matters.”

Education Act 2005 (section 30A). This paragraph was removed from the law by the Education Act 2001 (section 32).

Welsh schools must still provide a report under Schedule 2 of the School Governors’ Annual Reports (Wales) Regulations 2011. Schedule 2 contains details of all the items that must be included.

English governors may still wish to provide parents with an annual report. DfE departmental advice on the Roles, Procedures and Allowances regulations 2013 recommends that an “annual governance statement” is written.

This departmental advice is non-statutory so it is not a requirement, but it recommends that the governance statement includes details of committee remits, attendance rates at meetings and how effective you think the board has been with details of any challenges faced.

“It is also good practice for the board to publish an annual governance statement (as academy trusts are required to do through the Accounts Direction) to explain how it has fulfilled its responsibilities – particularly in relation to its core functions, including:

– the governance arrangements that are in place, including the remit of any committees;

– the attendance record of individual governors at board and committee meetings; and

– an assessment of the effectiveness and impact of the board and any committees with details of any particular challenges that have arisen.”

Departmental Advice on the Roles, Procedures and Allowances (England) Regulations 2013

If you wish to write a longer governors’ report here is a list of the items that used to be required for maintained school reports, taken from an even older piece of law (now revoked) called the Education (Governors’ Annual Reports) (England) Regulations 1999. This law said that governors’ reports must include:

• details of any parents’ evenings
  
  
• names of governors and clerk, plus details of terms of office, governor category and who has appointed each governor (this information must also be on the school website)
  
  
• information on parent governor elections
  
  
• a financial statement showing the overall budget and an overview of how the money was spent and any expenses paid for governors
  
  
• a description of the arrangements made for the security of pupils and staff
  
  
• the number of pupils and details of their attendance
  
  
• details of training and professional development attended by staff
  
  
• a statement on how successful the governing body’s policy on SEND has been
  
  
• percentages of children who reached attainment targets.

Governors’ Reports In Academies

The Academy Trust Handbook states that academies must provide an annual statement on governance alongside its annual accounts. This is not a report to parents but is a requirement of each academy’s funding agreement.

“The trust must provide details of its governance arrangements in the governance statement published with its annual accounts, including what the board has delegated to committees and, in trusts with multiple academies, to local governing bodies.”

Academy Trust Handbook (2021)

Details of what must be included are found in the Academies Accounts Direction which academies must use when preparing their financial statements.

“A governance statement must be included in the annual report as the academy trust is in receipt of public funds. HM Treasury requires all public bodies to prepare a governance statement.

“It includes information on the governance framework of the academy trust and confirmation that the trustees have carried out their responsibility for ensuring that effective management systems, including financial monitoring and control systems, have been put in place.

“The governance statement must be signed on behalf of the board of trustees (usually by the chair) and by the academy trust’s accounting officer.”

Academies Accounts Direction 2019-2020

The accounts direction includes an extensive description of what must be included, covering issues such as the governance framework and committee structure, attendance records, a review of value for money in the use of public assets and a review of the effectiveness of systems of internal control.

Yes, but the process for removal differs according to the type of governor they are, who appointed them and whether it is a maintained school or an academy.

In most cases maintained school governors can vote to remove a fellow governor, but some governors are appointed by other organisations and can only be removed by the body that appoints them. For example, local authority governors in maintained schools can only be removed by the local authority itself.

In academies the process depends on whether a trustee or local governor/committee member is being removed.

This page describes how to remove maintained school governors, associate members, academy trustees and local governors/committee members.

No Need To Remove Absent Governors

If a governor is just not turning up to meetings there is no need to go through the removal process as almost all can be easily disqualified in both maintained schools and academies.

If most maintained school governors fail to attend meetings for a period of six months (counting from the date of the first meeting that they miss) then they are disqualified unless the governing body chooses to give consent for their absence.

The only governors who are exempt from the six-month rule are “ex officio” governors whose role comes with their job, which means headteachers and some foundation governors only.

If a governor has been absent for six months the board should discuss the reasons for absence and vote to decide whether to disqualify them.

Academies have a similar rule – trustees can be disqualified if they miss all meetings “held within a period of six months” (model articles June 2021).

The rules say that if governors give their “consent” (or academy trustees “resolve” to let the trustee remain) it is acceptable for someone to miss more than six months of meetings. For example, if a governor has been ill the board might allow the absences; if they have just been disorganised or busy the board might not.

How To Remove Governors In Maintained Schools

It is important that you follow the procedure set out in law for removing governors or the removal could be challenged. I have summarised the process below, with details from the School Governance Constitution (England) Regulations 2012.

Before starting the formal procedure make sure that informal routes have been exhausted. For example, has the chair of governors met with the person to explain their concerns? Have you offered further training or support from a more experienced governor as a mentor?

A Note On Removing Elected Governors

It is particularly important to be careful when removing elected parent or staff governors, whether they were elected unopposed or via a ballot. The DfE recommends that these governors are removed only in “exceptional circumstances”.

Boards must also be careful about their approach to governors who are challenging or “difficult”, because challenging senior leaders is part of their role.

“Governing bodies are expected only to exercise the power to remove an elected governor in exceptional circumstances where the actions or behaviour of the elected governor warrants removal rather than suspension.

“The power should not be used simply to remove dissenting or challenging voices. Good governance involves asking courageous questions and offering appropriate professional challenge.”

Constitution of Governing Bodies of Maintained Schools: Statutory Guidance

An explanatory memo to the law says that removing elected governors should be a “last resort” that stops boards wasting time arguing.

“We think this is an important last resort to ensure governing bodies can function effectively, focusing on their core strategic functions and reducing time wasted in prolonged disputes.

Explanatory Memo to Constitution and Federations Amendment 2017

One last point to be aware of when removing elected governors is that anyone who is removed from an elected governor role is banned from serving on any governing body for five years.

“A person is disqualified from holding or continuing to hold office as a governor of a school until the date immediately after the fifth anniversary of the date of their removal as an elected parent or staff governor under these regulations.”

Constitution and Federations Amendment (England) Regulations 2017

Governors Can Appeal

Before deciding to remove a governor bear in mind that statutory guidance states that if a governor objects to their removal schools are expected to provide an appeals process run by an independent panel.

“Governing bodies are expected to provide an appeals procedure to enable any removed governor to test the reasonableness of the governing body’s decision to remove them.

“It is advised that an independent panel conducts the appeal, which could include a governor from another school, and/or a suitable official from the local authority, or a suitable diocesan representative.”

Constitution of Governing Bodies of Maintained Schools: Statutory Guidance

Procedure For Removing A Maintained School Governor

The following procedure applies to the removal of co-opted, staff, parent and partnership governors. It is set out in the Constitution Regulations 2012. (A partnership governor can either be removed by a vote from the school governing board or by the body that originally appointed him.)

This procedure does not apply to local authority governors, who can only be removed by the local authority.

This procedure does not apply to appointed foundation governors, who can only be removed by the body that appointed them (eg: the local diocese).

However, it does apply to ex officio foundation governors, for example the parish priest whose governor role comes with his job, but only if the school is asked to vote on the removal by the body that is entitled to request it (this body will be named in your instrument of government).

• Specify “Removal of [Governor Name] from the governing body” as an item of business on the agenda for a full governing body meeting. Give the governor concerned a warning that this will occur.
  
• Let the governor see a written account of the case against them and allow sufficient time for them to formulate their response before the meeting.
  
• Give the governor a right to reply to any accusations, either via a written statement or through an oral one.
  
• Hold a vote, preferably by ballot so governors can vote anonymously. The governor who is at risk of removal must leave the room and cannot vote.
  
• If governors vote in favour of removal they must repeat the vote in a second meeting held not less than 14 days later. Make sure the second vote is also a specified agenda item. (In an explanatory memo to the law, the DfE refer to the 14 days as a “cooling-off period” – a chance for governors to calmly reconsider their decision and possibly change their minds.)
  
• If the second vote is also in favour of removal then the person ceases to be a governor. Statutory guidance says that an appeals process must be made available to the governor.

Remember that for any vote the board must be quorate for the decision to be valid. Governors who have left the room do not count towards the quorum.

Grounds For Removal

Statutory guidance on the 2012 Constitution Regulations lists some situations when it might be appropriate to remove an elected governor in a maintained school, so that means an elected (but not appointed) parent governor or any staff governor (staff governors are always elected).

The guidance says elected governors should only be removed in “exceptional circumstances”.

The statutory guidance says the following situations could be grounds for removal of an elected governor.

“The five year disqualification term for removal reflects the expectation that the power to remove an elected governor will only be used in exceptional and serious circumstances (and such seriousness will depend on the facts of the case). Examples which could give rise to removal are where:

(a) there have been repeated grounds for suspension;

(b) there has been serious misconduct. Governing bodies should decide what constitutes serious misconduct based on the facts of the case. However, it is expected that any actions that compromise the Nolan principles, if sufficiently serious, would be considered in scope of this reason for removal;

(c) a governor displays repeated and serious incompetence; for example where an elected governor is unwilling or unable, despite all appropriate support, to develop the skills to contribute to effective governance; or where attendance is so irregular that the governor is unable to make any meaningful contribution to the work of the board;

(d) the governor has engaged in conduct aimed at undermining fundamental British values of democracy, the rule of law, individual liberty, mutual respect, and tolerance of those with different faiths and beliefs; and/or;

(e) the actions of the governor are significantly detrimental to the effective operation of the governing body, distracting it from its core strategic functions; and/or the actions of a governor interferes with the operational efficiency of the school thereby wasting a significant amount of headteacher and /or senior leadership time.”

Constitution of Governing Bodies of Maintained Schools: Statutory Guidance

Point A says that governors may be removed if there are repeated grounds for suspension. Another article cover the grounds for suspension, which include issues such as breaching confidentiality. Note that removal of a governor would require repeated grounds for suspension.

Point B refers to “serious misconduct” which is not defined in the guidance, but the DfE say that a serious breach of the Nolan principles would qualify. These seven principles are the ethical standards expected of people in public office: selflessness, integrity, objectivity, accountability, openness, honesty and leadership.

How To Remove Each Type Of Maintained School Governor

Parent governors (both elected and appointed) – hold two majority votes at two full governing body meetings not less than 14 days apart.

Staff governors – hold two majority votes at two full governing body meetings not less than 14 days apart.

Local authority governors – can only be removed by your local authority. Contact the LA and formally set out your concerns about the governor. The LA have the power to remove the governor if they feel it is appropriate but the school governing board does not. (Governing bodies do have the power to suspend local authority governors though.)

Co-opted governors and partnership governors – hold two majority votes at two full governing body meetings not less than 14 days apart. Partnership governors can also be removed by the body that appointed them so you could also express your concerns directly to that body. Their details will be found in your instrument of government.

Foundation governors (appointed only) – may only be removed by the body which appointed them, eg: the local diocese. (Governing bodies do have the power to suspend foundation governors though.)

Foundation governors (ex officio) – may only be removed by the governing body if they are asked to remove them by the body named in the instrument of government as entitled to do so. Having receiving the request governors would vote in favour or against, following the procedure described above.

Note that if an ex officio foundation governor is unable or unwilling to take up their governor role then a substitute governor can be appointed by the same organisation that appointed the original foundation governor.

Headteacher governors – cannot be removed as they are ex officio governors. Headteachers can choose not to be a governor if they wish, although I have never come across a headteacher who did not sit on the governing board.

Associate members – hold a majority vote at a full governing body meeting. Associate members are not governors so there is no need to follow the full procedures outlined above, although you could do if you wanted to be scrupulously fair. The law simply says that “An associate member may be removed from office by the governing body at any time.”

How To Remove Academy Trustees and Local Governors

In academies the process for removal depends on whether you wish to remove a trustee or local governor/committee member.

How To Remove A Local Governor

In a multi-academy trust the local governing bodies are all committees of the main trust board. This means that the board of trustees has the power to remove any local governor. In all academies the board of trustees has the power to remove all committee members who are not trustees.

The model articles (June 2021) explain that trustees have the power to determine the constitution, membership and proceedings of any committee, including local governing bodies.

“The constitution, membership and proceedings of any committee shall be determined by the trustees.”

Model Articles of Association (June 2021)

There is no set process listed in the articles for removal of local governors and other committee members.

However, it would be reasonable to ensure that the removal is listed as an agenda item, the agenda is sent out in advance as you would usually do and the person in question is given a chance to argue against their removal at the meeting.

How To Remove An Academy Trustee

The model articles (June 2021) explain that the power to remove a trustee lies with whoever appointed or elected them. Therefore, if trustees have appointed any co-opted trustees they also have the power to remove them.

Articles also explain that the members of the academy trust have the power to remove any trustee, however they were appointed or elected.

Members can remove trustees by passing an “ordinary resolution”, which means a majority vote in favour. The articles refer to this as an ordinary resolution under the Companies Act 2006.

“A trustee may be removed by the person or persons who appointed or elected them, or otherwise by ordinary resolution of the members in accordance with the Companies Act 2006.”

Model Articles of Association (June 2021)

If trustees are voting to remove a co-opted trustee there is no set process in the model articles, but again a reasonable approach would be to list the removal as an agenda item, send the agenda in advance and give the trustee a chance to defend themselves at the meeting.

If members are voting to remove any trustee they must follow the rules in sections 168 and 169 of the Companies Act 2006. This means that:

• special notice must be given of the meeting; under section 312 of the Companies Act 2006 this means that members must receive the notice at least 28 days before the meeting
• the trustee has the “right to protest” their removal at the meeting; they also have the right to protest in writing and have their protest distributed to the members
• the members must pass an ordinary resolution in favour of the removal, which means a majority vote (more than 50% in favour).

The quote below from the Companies Act 2006 refers to “directors” rather than trustees, because academy trustees are also directors under company law.

“A company may by ordinary resolution at a meeting remove a director before the expiration of his period of office, notwithstanding anything in any agreement between it and him.

“Special notice is required of a resolution to remove a director under this section or to appoint somebody instead of a director so removed at the meeting at which he is removed.

“The director (whether or not a member of the company) is entitled to be heard on the resolution at the meeting.”

Companies Act 2006 (Sections 168/169)

Maintained school governors are not paid unless they are part of an interim executive board (IEB). An IEB is an expert governing board that has been brought in to help a struggling school, for example a school in special measures.

The vast majority of maintained schools will therefore have unpaid school governors. Even members of IEBs may not be paid, depending on the circumstances.

“There is no legal power for schools, local authorities or the government to pay individuals on maintained school governing bodies for their governance duties.

“Where an IEB has been put in place, a local authority may choose to pay IEB members.”

DfE Maintained Schools Governance Guide

Is the chair of governors paid?

No. The chair and vice-chair do not receive any payment or salary for taking on these roles.

Associate members are also unpaid and the headteacher does not receive extra salary for being a governor. The only person who gets paid to attend meetings of the governing body is the clerk.

Do parent governors get paid?

No. As explained above the only time a governor might be paid is if they are serving on an IEB at a school that is in trouble. The vast majority of parent governors carry out their duties without receiving a salary or payment.

Are academy trustees paid?

Like maintained school governors, academy trustees are almost always unpaid volunteers. The chair of trustees at an academy trust does not receive payment for taking the chair.

Academies are charitable companies and so they must follow charity law. The DfE say that any payments to trustees would need to be approved by the Charity Commission and be expressly allowed by the academy trust’s articles of association.

“Individuals can only receive payment for carrying out their (charity) trustee duties if [it is] specifically allowed by the academy’s articles of association [and] the trust has express authorisation from the Charity Commission.”

DfE Academy Trust Governance Guide