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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
Your school needs to carry out a 'section 128' check to 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 this also means they can't be on the senior management team.
Who needs to do them?
Academies must carry out section 128 checks, according to paragraph 154 of Keeping Children Safe in Education (KCSIE).
Guidance recommends that maintained schools should also carry out these checks for all governors, because a person subject to one is disqualified from being a governor (paragraph 189 of KCSIE).
Academies must carry out section 128 checks for:
- Trust members and trustees
- Governors who sit on committees or local governing bodies with delegated responsibilities
- Staff engaged in management positions (see below)
The following are 'management positions':
- Teaching positions on the senior leadership team
- Teaching positions that carry a department headship
This is explained in paragraphs 144 to 145 of KCSIE.
Other positions may also require a check, depending on the specific responsibilities the person holds.
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
Section 128 directions may also be issued if a person has engaged in conduct that is aimed at undermining:
- British values
- 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 academy or free school board that has delegated 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 144 and 146 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 barred list, school staff will have to specify 'children's workforce independent schools' in the parameters when they apply for the enhanced DBS check (paragraph 151 of KCSIE).
If the person doesn't need a barred list check, they'll have to use the Department for Education's (DfE) secure access portal to conduct the section 128 check (see instructions below).
For existing staff, 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' (even for governors).
As governors 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.
DBS update service
Your school can also use the DBS update service to conduct the check if:
- The person is subscribed to the service
- They have already had a DBS with a barred list
Ann Marie Christian is an independent safeguarding consultant, trouble shooter, author and trainer. She provides consultancy for designated safeguarding leads, heads, senior leaders and governors. She has experience in frontline and managerial child protection matters including school improvement, casework and training.
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