School staff involved in “reckless budgeting” or breaching academy funding rules can be banned from the profession, new government guidance has laid out.
The Department for Education has today published detailed rules on its powers to bar people from managing schools. Under section 128 of the Education and Skills Act 2008, the education secretary can prohibit unsuitable people from taking part in the management of schools.
The department has already used the powers to ban people for offences ranging from undermining British values to, more recently, involvement in academy scandals.
Academies minister Baroness Berridge told Schools Week last year there is “simply no place” in education for discredited academy bosses – and vowed to “take action” against those who flout the rules.
Here’s what you need to know:
1. ‘Reckless’ spenders can be banned
Under section 128, people can be banned for four reasons: Being convicted of a relevant offence, being cautioned in respect of a relevant offence, being subject to a relevant finding in respect of a relevant offence, or being engaged in relevant conduct.
Perhaps the woolliest of those is “being engaged in relevant conduct”. DfE says this includes three things: undermining British values, breaching professional standards or being involved in conduct “so inappropriate that, in the opinion of the appropriate authority, it makes a person unsuitable” to take part in school management.
Examples of the latter include dishonest conduct, conduct which “demonstrates that the person lack integrity”, or abuse of position.
It can also include “financial and governance mismanagement”. Examples listed include being “involved in budgeting or expenditure which is reckless”, “serious, deliberate or repeated breaches” of the academies financial or governance handbooks or “grossly negligent” conduct that “either did, or was likely to have led to the misuse of public funds”.
2. It’s not just school leaders who can be barred…
The rules allow someone to be banned from “participating in the management of an independent school” if they are deemed unsuitable to do so. The guidance says this applies to those who have worked in a management position or are likely to hold management positions in the future.
There is no “exhaustive list” of what is regarded as “management”. The DfE’s view is that roles in scope include heads, principals, deputy and assistant heads, governors and trustees. It also covers chief finance and operating officers.
“It is important to note that the person’s job title is not the determining factor and whether other teaching posts with additional responsibilities count as ‘taking part in management’ will depend on the facts of the case,” the guidance states.
3. How the education secretary will decide if you’re a bad apple
The secretary of state will do an “assessment of suitability” before signing off orders. This will include examining “the person’s explanation for the conduct, the person’s credibility, integrity and trustworthiness and information related to the person’s understanding of the duties which apply to independent schools (both at the time of the conduct and in the response to the minded to bar notice)”.
Assessment will also cover the “future risk that the persons poses”, as well as the consequences for their career prospects if they are banned.
4. Bans could be limited to specific roles
The guidance reveals the secretary of state can prohibit staff from working in specific roles, rather than an all-out ban. An example given is bad conduct over a financial matter that isn’t serious enough to warrant a total ban could result in that person being restricted from school finance roles only.
“Alternatively, where the inappropriate conduct relates to a specific role in the management of a school, the secretary of state may allow the individual to take part in the management of a school if certain conditions are satisfied,” the guidance adds.
5. Schools can make banning order referrals
Banning investigations could be sparked by allegations from Education and Skills Funding Agency monitoring visits, reports from councils, newspaper articles or information from regulatory bodies such as Ofsted.
There’s also a Section 128 hotline for governing bodies or school proprietors who want to make a referral (the email address is Section128.Referrals@education.gov.uk ).
If a banning order is deemed appropriate, the school employee will get a “minded to bar” notice. They have two months to challenge the order, before the department will review the submission. There is no fixed timescale for the review.
Those issued an order have three months to appeal to the first-tier tribunal, and the banning order can also be revoked.
6. Insolvency and charity regulators might also be involved
If appropriate, the department may also refer findings about a school employee’s conduct to other regulators, including the charity commission and the insolvency service. Evidence from Teaching Regulation Agency cases may also be used.
Four academy trusts have been referred to the charity commission by the DfE since 2018. However, the commission did not take regulatory action as there were other “investigation and enforcement options available”. The regulator refused to release the names of the academy trusts after a freedom of information request from Schools Week.