No. 21: Section 128 checks
Contents
What is a s128 check?
A section 128 direction prohibits or restricts a person from taking part in the management of an independent school, including academies and free schools. A person who is prohibited is unable to participate in any management of an independent school such as:
- a management position in an independent school, academy, or free school as an employee;
- a trustee of an academy or free school trust; a governor or member of a proprietor body for an independent school; or
- a governor on any governing body in an independent school, academy or free school that retains or has been delegated any management responsibilities.
Such a check would be needed for employees or directors/governors/trustees in any of the positions described above for independent schools, academies or free schools.
Since 2018 KCSiE states: A section 128 direction disqualifies a person from holding or continuing to hold office as a governor of a maintained school (para 128 KCSiE 2019).
Under School Governance Constitution Regulations 2012, as amended by The School Governance (Constitution and Federations) (England) (Amendment) Regulations 2014, a Section 128 direction disqualifies a person from holding office as a governor in a maintained school. Whilst the statute and regulations do not explicitly state that schools must undertake Section 128 Direction checks on governors, governing bodies would not know if a potential governor is subject to such a direction without making the check. It is therefore implicit in the regulations that ALL governors should have a Section 128 Direction order check made against them.
Governing bodies should ensure that all potential governors are checked for Section 128 Directions, prior to appointment, using their school’s access to The Teacher Regulation Agency. This can be done in advance of processing a DBS Enhanced check, for new/potential governors.
Advice to maintained schools
Maintained Schools should utilise the Teacher Regulation Agency check for new governors to satisfy KCSiE requirements since 2018 that a prospective governor is not prohibited under the s128 check.
Schools would also be advised to ensure that prospective governors are advised of this requirement, alongside other checks such as DBS as a further deterrent.
Our advice is that, since the Teacher Regulation Agency requires secure username and password access, Section 128 checks should only be performed by the school administrator who has access to this portal and not by the clerk of governors.
We recommend that it would be good practice to check all governors for Section 128 Directions. The check has no cost and takes very little time.
Should schools choose to back-date such checks for existing governors, this is at their discretion. Schools would be advised to have a record of this update in the governing body minutes with agreed actions noted.
For any staff or governors where a check has been made, we advise this is recorded on the Single Central Record (SCR).