Section 128 checks
Make sure you know who should have a section 128 check under the latest safeguarding guidance and how to carry one out. Understand what the check looks for and why it's important.
In a nutshell
Section 128 checks see whether a person is banned from being involved in the management and governance of schools.
If someone has been issued with a 'section 128 direction', they can't serve on your board, and in academies it also means they can't be on the senior management team.
Who needs to do them?
Maintained schools should carry out these checks for all governors, because a person prevented from participating in the management of an independent school by a section 128 direction is also disqualified from being a governor in a maintained school.
This is set out in paragraph 297 of Keeping Children Safe in Education (KCSIE) 2021.
Academies must carry out section 128 checks for:
- Trust members and trustees
- Individuals who sit on committees or local governing bodies (LGBs) with delegated responsibilities
- For example, local governors on LGBs, or people who sit on trust committees but who aren't trustees (sometimes called 'associate members')
- Staff engaged in management positions (see below)
The following are 'management positions':
- Deputy headteacher
- Assistant headteacher
Other positions may also require a check, depending on the specific responsibilities the person holds.
This is explained in paragraphs 213, 237, 238, 305 and 308 of KCSIE 2021 (and the requirement for trust members to have this check is most clearly set out in paragraph 1.4 of the Academy Trust Handbook 2021).
Who is responsible for conducting this check in trusts will depend on its scheme of delegation. This responsibility may sit with individual schools, or may be the responsibility of the trust's central team.
What are they?
When is a section 128 direction issued?
A section 128 direction can be issued on specific grounds where the type of conviction, caution or conduct suggests that the person is 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
A section 128 direction may also be issued if a person has engaged in conduct that is aimed at undermining British values:
- The rule of law
- Individual liberty
- Mutual respect and tolerance of those with different faiths and beliefs
This (and the full list of grounds) is set out in regulation 2 of The Independent Educational Provision in England (Prohibition on Participation in Management) Regulations 2014.
What does it stop someone doing?
People with a section 128 direction can't:
- Hold a management position in an academy, free school or independent school (as an employee)
- Be an academy or free school trustee or member
- Be a governor on any governing body in an academy, free school or independent school that retains or has been delegated any management responsibilities
- Be a governor or member of the proprietor body of an independent school
- Be a governor of a maintained school
This is set out in paragraphs 237 (academies) and 297 (maintained schools) of KCSIE.
Why are these checks important?
Section 128 checks complement DBS checks by also looking at the parts of someone's history that may not necessarily be criminal, but would still be worrying.
- Someone who undermines mutual respect for those of different faiths may not be charged with a hate crime, but you still wouldn't want them associated with your school
- An accountant who has breached the code of ethics set out by their professional body by using confidential client information for personal gain hasn't necessarily committed a crime, but you probably wouldn't want them overseeing your school's accounts
You protect your school's or trust's best interests by making sure you have a full picture of someone's suitability.
How to conduct a check
As a governor, you need to know who needs a check, but you won't carry out the check yourself.
For your reference, here's how school staff will do it:
For new appointments
If the person requires a DBS check with a barred list check, a section 128 direction will be disclosed if school staff specify 'child workforce independent schools' in the parameters when they apply for the enhanced DBS check (paragraph 240 of KCSIE).
If the person doesn't need a barred list check, school staff will need to use the Department for Education's secure access portal to conduct the section 128 check (see instructions below).
For existing staff, and governors, trustees and members
School staff will log on to the DfE sign-in portal and carry out the check through the Teaching Regulation Agency.
As governors, trustees and members won't have a teacher reference number (TRN), school staff can download a list of all the people with a section 128 direction and check against them.