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.