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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 independent schools, academies and free schools
In an independent school, academy or free school all board members and trustees, local governors and any officers/employees of the organisation who manage the “business” (Principals, Head Teachers, Deputy Principals/Headteachers Finance Managers, etc per the guidance, above) must be checked as an integral part of their appointment/ induction/pre-employment checks. Independent schools, academies and free schools can either apply for a S128 check alongside DBS checking or use the TRA checker.
Advice to maintained schools
In a maintained school, all governors must be checked. In the majority of maintained schools as the Headteacher is an ex officio governor they and any elected staff governors must be checked before they take up post. Maintained schools should use the Teacher Regulation Agency (TRA) in order to check prospective governors.
The checks should be recorded on the Single Central Record for the school(s). Back dated checks can be conducted at their discretion but are advised to record this decision in governing body minutes.
The Secretary of State’s office publishes regular updates in relation to S128 directions and these can be found by following the link; https://www.gov.uk/government/collections/individuals-prohibited-from-managing-or-governing-schools. There is also a One Minute Guide for reference: https://www.devon.gov.uk/support-schools-settings/safeguarding/guidance-policy-and-tools-2/safeguarding-one-minute-guides/no-21-section-128-checks/