Case Study 7

A governing body recently requested that a parent governor underwent a Disclosure and Barring (DBS) check (previously a Criminal Records Bureau check (CRB)) together with a barred list check to ensure they are not unsuitable to work with children. The governor in question refused outright, on the basis that she had been a governor at the school for the last 10 months. Her refusal resulted in disqualification. The parent governor in question was outraged and made a formal complaint to the Local Authority on the basis that she was not engaged in ‘regulated activity’ and therefore there was no requirement for her to be checked in this manner.

  • Has the whole governing body had a DBS (CRB) check?
  • Does the governor volunteer at the school and have unsupervised access to children? If so, they would need to apply for the DBS check with barred list check.
  • What is the Local Authority policy on governors being DBS checked?

The legal framework regarding checks for governors in Wales is noted below:
The Government of Maintained Schools (Wales) Regulations 2005 provides specific disqualification provisions:-
Schedule 5, Regulation 12:
A person is disqualified from holding or continuing to hold office as a governor at any time when he or she refuses a request by the governing body to make an application under section 113B of The Police Act 1997 for a criminal records certificate.

However, the position is not straightforward given that the types of checks which can be undertaken changed on 10 September 2012 following the introduction of the Safeguarding of Vulnerable Groups Act 2006 and the Protection of Freedom Act 2012. There are now three types of checks available:

  • Standard DBS check – includes information from police national computer – generally details of criminal convictions/cautions which are unspent;
  • Enhanced DBS check – includes information from police national computer and police information – these checks can only be applied for posts that are either listed in both the Rehabilitation of Offenders Act (Exceptions Order) 1975 and the Police Act 1997 (Criminal Records Regulations). However, importantly, individuals who previously fell within the old definition of regulated activity (but no longer do so) can still remain eligible for this check.
  • Enhanced DBS check with barred list checks – these can only be applied for if an individual undertakes ‘regulated activity’.

Governors used to be regarded as undertaking regulated activity under the original ISA system, and therefore were required to be CRB checked, with checks also being undertaken of the barred lists, to check that they were not deemed unsuitable to work with children.

However, under the new system, Governors (who are of course mainly volunteers) will not generally be engaged in ‘regulated activity’ unless they are undertaking some ‘work’ at the school, on a regular basis, that is not supervised. In fact, the Government guidance specifically refers to Governors as having been removed from the scope of ‘regulated activity’ as of 10 September 2012. It will not be common for a governor to be undertaking work at a school when they are not being ‘supervised’ by someone who is in regulated activity themselves (e.g. if they are present at meetings etc, then generally the head teacher or another member of the school’s staff will be present).

On this basis, due to the fact that governors used to be caught by the old definition of regulated activity, a governor is still eligible for an enhanced DBS check, but will not be eligible to be checked to see if they are on either of the barred lists, unless they are engaged in regulated activity.

As a result, whilst Governing Bodies and Local Authorities can require Governors to have enhanced DBS checks, we do not believe that they can insist on all governors being checked under the barred lists unless they can establish that the governor in question is engaged in regulated activity. We understand that the DBS may well decline applications for checks on this basis.