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.)
- A standard check – a check of the police national computer records of convictions, cautions, reprimands and warnings.
- 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.)
- 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.
Rules for academies don’t contain the 21-day deadline at all, but of course the DBS should still be applied for promptly.
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)