Are you section 128 safeguarding compliant?

Devon schools undergoing recent Ofsted inspections are being asked if their board members have had section 128 checks.

Section 128 checks see whether a person is banned from being involved in the management and therefore also the governance of schools and in the main will be a check undertaken in addition to an enhanced DBS check.

Academies should note that if someone has been issued with a section 128 direction, they can’t serve on a trustee board 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. In academies it also means they can’t be on the senior management team as an employee. Trustees/governors in academies are required to have an enhanced DBS check but as governance is not a regulated activity relating to children, are unlikely to need a children’s barred list check which checks section 128 direction, unless in addition to their governance duties, they also engage in regulated activity. So trustees/governors would need a separate section 128 check to take place. Independent schools (including academies and free schools) must record details of the section 128 checks undertaken for those in management positions on the single central record.

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. Governors in maintained schools are required to have an enhanced DBS check but governance is not a regulated activity relating to children, so governors do not need a children’s barred list check which checks section 128 direction unless, in addition to their governance duties, they also engage in regulated activity. So maintained governors would need a separate section 128 check to take place. There is no requirement for maintained schools to record this information on the single central record, but they can if they chose to.

The free Employer Secure Access sign-in portal via the TRA Teacher Services web page, can be used to check if a person being recruited as a governor or trustee is barred as a result of being subject to a section 128 direction.

Further information is set out in paragraphs 260 and 315 of Keeping Children Safe in Education (KCSIE) 2022.