“Every child and young person with special educational needs or disabilities should have access to high-quality services. Where a council does not meet their requirements to provide appropriate support for these children, we will not hesitate to take action that prioritises their needs and brings about rapid improvement.” –Department for Education, October 2021
“Has anything improved since October 2021? No. And I think that is really is where the challenge is. It's all about impact. And for parents, for families, until the impact is felt, there is no improvement.”Sabiha Aziz, Chair of Birmingham Parent Carer Forum, February 2023
In recent SNJ posts, we’ve explored how local area SEND inspections work. But what happens when a local area’s SEND service fails inspection but doesn’t improve enough?
In this instance, accountability gets handed over to the Department for Education and NHS England, who decide what happens next. This can – and sometimes, does – include formal intervention.
Birmingham is currently the most high-profile example of this. It’s a canary in the accountability coal mine for the rest of us. So, what’s going on there, and is the action being taken bringing about the “rapid improvement” that the DfE promised?
Birmingham is England’s largest local authority, and its SEND services have been a mess for well over a decade. When Ofsted and the Care Quality Commission inspected Birmingham’s SEND services in 2018, they identified 13 significant weaknesses - including defective leadership, a lack of strategic planning, and capacity and culture problems at operational level.
Ofsted and CQC re-visited Birmingham in May 2021, as they revisit all areas that fail their initial inspection. They assessed that shamefully, only one of these 13 significant weaknesses had been sorted out to their satisfaction. In October 2021, the Department for Education took action. For the first time ever, they appointed an external SEND Commissioner - John Coughlan - to drive improvement of Birmingham’s SEND services.
So who is John Coughlan, and how’s he getting on?
Troubleshooting from the hip
Like most of the DfE’s preferred SEND trouble-shooters, John Coughlan has a background in local government. Mr Coughlan was Director of Children’s Services (and subsequently Chief Executive) of Hampshire Council for much of the 2010s. He’s helped turn around several underperforming councils. This is his first specific crack at SEND.
So did Mr Coughlan run a quality SEND service in his own LA? I moved into Coughlan’s LA in the early 2010s. While I’ve certainly experienced worse elsewhere, the SEND service he ran in Hampshire was light years away from good. Our case officers were great – but the decisions their managers made were appalling, with repeated attempts to strip specified and quantified detail from my kids’ plans.
The transition over to the EHCP system left my kids with draft plans that were far worse than their previous statements of SEN. We only got timely secondary transition sorted once we mentioned the words ‘judicial review’.
There were hundreds of Hampshire families in the same boat as us when Mr Coughlan was steering the ship. So it was a surprise to all of us to see that he’d been appointed to sort out Birmingham SEND.
Once he started as the DfE’s SEND Commissioner for Birmingham, Mr Coughlan spent the first few months getting the lie of the land. In spring 2022, he wrote a report for the DfE – you can find it here.
In his report, Mr Coughlan made 15 initial recommendations. One of his highest priority recommendations was to review operations at Birmingham’s SEND Information, Advice and Support Service (SENDIASS).
This review was conducted last summer, by a consultant working for the National Children’s Bureau (NCB). Each local SENDIASS has to meet 20 ‘minimum standards.’ The review report states that Birmingham’s SENDIASS failed to meet 85% of those standards - conclusions that Mr Coughlan described as a “devastating critique.”
So how bad is it? The process, handling and dissemination of this ‘independent review’ has been irregular, to put it mildly. The reviewer seems to have interviewed just one parent. SENDIASS staff were given no formal right of reply. The review report is owned by council officers, who locked down distribution and discussion of its contents for many months. Some of the SEND Commissioner’s correspondence was leaked to local media.
A redacted version of the NCB review report has only recently made its way into the public domain, via a council scrutiny committee. You can read it here.
Birmingham SENDIASS too helpful for comfort?
For years, Birmingham’s SENDIASS has been an unusual setup. Firstly, its work covered things (including ‘front door’ SEND service referrals) that go well beyond what SENDIASS normally does. Local parents and professionals say this happened because core council-commissioned services that should be carrying this out simply failed to do so when needed.
Secondly, Birmingham’s SENDIASS supported families with SEND to challenge local authority decisions on a scale unmatched by any other SENDIASS service nationally.
Grossly underfunded by national standards, Birmingham’s SENDIASS helped parents appeal against hundreds of LA decisions each year, usually up to and including representation at SENDIST tribunals, with a 90% success rate. Most Birmingham families who’ve relied on this service live in some of England’s most deprived districts. Most of these families had no other meaningful sources of support to draw on.
The NCB review report is a badly-structured mess that in places makes embarrassingly poor use of source material, including material taken from SNJ. Councillors and parent carers have pushed back, but the DfE’s SEND Commissioner and council officers have decreed that SENDIASS needs urgent reform. Coughlan described Birmingham SENDIASS as “bloated”, “overly political” and “suffering from mission creep”. He decreed it should focus on meeting its minimum standards.
The mission creep isn’t entirely wrong. The ‘front door’ work should probably now be done elsewhere. But frankly, it’s not hard to see what really drives the hostility of the Commissioner and council managers towards Birmingham SENDIASS – and it’s not the quality of its paperwork, governance, or lines of accountability.
It’s the simple fact that Birmingham SENDIASS helped parents with no resources of their own to challenge local authority decisions, on an industrial scale. Thousands of challenges, often via the SEND Tribunal, almost always successful, repeatedly revealing Birmingham LA SEND decision-making for what it is: serially flawed, and frequently unlawful.
If SENDIASS was supporting hundreds of unsuccessful and frivolous Tribunal appeals per year, the Commissioner would have a point. But the 2014-2022 SENDIASS success rate is around 90% - so he doesn’t.
Service no longer delivering, with parental data security unclear
The future of Birmingham SENDIASS is unclear – but as things stand, the service that existed in 2022 has effectively been dismantled. Managers have been suspended, and other staff have left. There are huge question marks about information security and data protection – in particular, who assumed the role of data controller when SENDIASS managers were rusticated, and who ensured the security of the service’s extremely sensitive personal data and confidential casework.
The LA insists that “this absence has had no impact on the delivery of service” – a literally incredible statement that’s flatly contradicted by parents who were promised SENDIASS representation at upcoming Tribunal hearings, and now have none.
SENDIASS now has interim management. The LA insists that “support remains at all stages of the process including if required at the Tribunal.” – a slippery phrase that avoids saying who actually decides what parents require. Parents who have recently approached the new SENDIASS team for help have been told that close support and representation for SENDIST appeals are being rationed via a highly-restrictive set of criteria.
There are also other reasons to be concerned about capability and governance. When questioned by Birmingham councillors recently, the SEND Commissioner said that it was “counter-intuitive” to believe that a SENDIASS could be good when local area SEND services were poor.
That’s a worrying statement. Firstly, intuition isn’t data: there are dozens of Ofsted & CQC inspections that show high-performing SENDIASS working with dysfunctional local area SEND services. And secondly, a senior commissioner would only assume a direct and automatic correlation between these two services’ performance levels if that person had little respect for the principle of arms-length operation.
While this farce plays out, you might be wondering what the LA itself is doing. Is it scaling back its investment in Tribunal appeal defence, in line with what’s happening to SENDIASS?
Of course not.
Birmingham LA has a team of 13 dedicated Tribunal appeal defence officers. Employing this team costs the taxpayer over £1 million annually. Unbelievably, this team is expanding – at the same time that SENDIASS is being throttled.
Minimum Standards for Some, Not For Others
Birmingham SENDIASS is not the only service that’s subject to minimum standards. Like every other LA, Birmingham Council has its own minimum standards that it should be meeting - statutory SEND obligations. So how’s its actual SEND service delivery going?
Welcome to SENAR – Birmingham’s SEND assessment service. It’s been broken for years. Birmingham parents, professionals and councillors say that when the pandemic hit in early 2020, SENAR effectively stopped functioning.
Going by what’s on the Local Offer, they’re starting to get their act together. The DfE Commissioner heads a “SEND Improvement Board”, which kicks off every meeting with a case study. A new Director of Children’s Services is in post. A new Assistant Head of SEND and Inclusion has just started. SENAR now has a full management team in place. There are improvement workstreams. There are data dashboards. There’s a battle rhythm of ‘you said, we did’ official communication from the centre.
There’s a hum of improvement in the air at Council House. But step outside, head to the frontline, and actual service improvement is very, very hard to detect yet. Look at the management chain, and it’s not hard to see why.
The senior leaders responsible for SEND in Birmingham LA – from the Director of Children’s Services downwards – have largely been brought in from other local areas. Not a bad thing in itself, if the last lot drove the service over a cliff. But good practice is hard to find in any local area’s SEND. Almost all of the Birmingham management team come from local area SEND services in London and the east of England that racked up written statements of action at inspection.
Worse still, some of the new senior SENAR managers have previous form in their previous LAs. Toxic, Novichok-grade, parent-blaming, Tribunal-abusing form. Form that appears to have been no barrier at all to their employment with SENAR.
Not even close to lawful practice
The DfE SEND Commissioner won’t be lowering himself to asking parents in those LAs about their experiences. But as he’s a self-declared fan of ‘independent reviews’ that deliver ‘devastating critiques’ about widespread failures to meet ‘minimum standards,’ he might like to read this review from Suffolk.
Mr Coughlan might like to ask himself why the manager of this service left their previous LA. He might like to ask himself why this manager has been deemed good enough for Birmingham’s SEND families and frontliners. And he might like to ask himself why he doesn’t exhibit the same publicly strutting muscularity with SENAR as he does with SENDIASS.
The stated plan is to make SENAR compliant with statutory duty. They have a long, long way to go. Over the last few weeks, parents and professionals have shared samples of SENAR casework with us. What they’ve shared has been consistently appalling.
- EHC needs assessment requests, refused for no other reason than an absence of specialists to conduct them.
- Potemkin EHCPs, produced within the 20-week statutory timescale to hit targets, but almost totally empty of content.
- Finalised EHCPs with no named school, even in mainstream.
- Misleading and unlawful advice given to parents and professionals: again, and again, and again.
It’s not obvious how SENAR will become an organisation that instinctively and automatically complies with its statutory duties, given the calibre and culture of the managers that now run it. It’s also not obvious how that’s going to happen without a permanent workforce. Five years after the Ofsted / CQC inspection, 21 months after the Ofsted / CQC re-visit, and 17 months after the Commissioner arrived, the LA still doesn’t have a permanent workforce for their core SEND service.
SENAR are spending astonishing sums of money on consultants and agency staff. Analysis of council payments data suggests that at one point in 2022, SENAR were spending over £579,000 per month on agency workers. From the data, it’s likely that almost all of SENAR’s workforce are interim workers.
Incredibly, some of the basic enablers of good SEND service delivery still aren’t in place. There’s still no finalised joint workforce strategy across education, health and social care. A programme to overhaul SENAR’s dysfunctional case management system is well behind track, and won’t deliver until at least the summer. Quality assurance remains a work in progress. The published risk register hasn’t been updated since November 2021.
Culture eats strategy for breakfast. The time that these guys took out of their schedules to hammer SENDIASS into pieces is time they could have spent on the real problems with the service. Any Birmingham parent, if they’d bothered to listen, would have told them that SENAR is the problem you fix first.
And that’s before we get onto the improvement plan itself.
Accelerated Progress, Trabant Style
When an LA fails its SEND inspection re-visit, the main vehicle that the DfE use to drive improvement is something called an ‘Accelerated Progress Plan’ (APP). The APP is supposed to set out what Birmingham needs to do to improve, measure what improvement they’ve made, and show how they know they’re on target to improve.
Birmingham’s Parent Carer Forum and councillors have been trying to get the SEND bigwigs to share more information with the wider community. It’s been like pulling teeth; until last week, the most recent version of the APP in the public domain was 10 months out of date.
The most recent APP was published last week, with data from late 2022. You can find it here, and it’s a mess. Many key performance indicators (KPIs) on the Birmingham APP aren’t populated yet – particularly those that show how parent carers and SENCOs rate the service, and how good EHCPs actually are.
Other KPIs are populated with data that’s sketchily-sourced, easily gamed, or bone-headedly crude. A KPI to place 40% of children and young people with EHCPs in mainstream by May can’t be met without moving hundreds of students into schools that aren’t ready to take them, without any apparent regard to the pupils’ wishes.
The dashboard data on Tribunal appeals is shown as a monthly snapshot; it doesn’t show that the number of appeals to SENDIST has nearly doubled in the course of just one year. The dashboard shows that the volume of complaints is down – but parents report that the complaints process has, entirely coincidentally, become much more complex and convoluted.
And some of the data on the dashboard makes for grim reading. The dashboard states that there were over 250 children and young people with SEND in Birmingham in November 2022 waiting on a specialist placement: that number has since grown to nearly 300. Local parents and professionals we spoke to said that these figures were highly likely to be understating the problem.
Waiting times for therapies are generally dropping - but slowly, and from an incredibly high starting point. The average wait for physiotherapy in November 2022 was 28 weeks; the longest wait was an incredible 99 weeks.
The longest wait for school-age neurodiversity assessment was two-and-a-half years: the box for this on the APP is ticked green, indicating that the LA & local NHS service consider it perfectly acceptable.
Is anything getting better on the ground?
We asked local SEND parent carers, young people, and professionals whether anything in Birmingham had improved on the ground since the DfE SEND Commissioner arrived in town.
Some pointed to SEND transport as an area that had definitely got better, albeit from a dangerously low base. Others pointed to aspects of SENAR’s case management: for example, a recent change to assigning named case officers, rather than the Kafkaesque chat roulette option on offer before.
But most parent carers and professionals we spoke to struggled to find anything positive to say at all. They’ve been waiting a very long time for things to get better. They are deeply irritated by the messaging from high-priced leaders that things are getting better now, and that parent carers should be celebrating the improvement plan’s successes when they are barely detectable.
They’re exasperated by the message that better accountability is now in place, when that accountability just exists on a PowerPoint wiring diagram, and makes little-to-no difference to frontline practice. They’re aggravated at the improvement team’s failure to build on the expertise and energy of Birmingham’s broad and effective range of parent-built grass-roots support groups.
They’re baffled by the suggestion that SENAR is becoming ‘compliant,’ when the service still makes serially poor and unlawful decisions, backed by a million-pound stable of mercenary Tribunal goons, right when SENDIASS has now been hamstrung and harrowed.
They’re annoyed by the SEND Commissioner’s apparently infinite reserves of Zen-like understanding for people from his own cadre – council managers – when he’s shown himself perfectly capable of acting quickly, publicly and ruthlessly against services and councillors who challenge those managers.
And they’re livid at the way their lived experience is sometimes arrogantly dismissed as something from the past - when it’s very clearly from the present, and looks horribly like it’ll be the future too.
Above all though, they’re deeply angered by the improvement team’s repeated patronising requests for patience, that it takes time to turn things around; that everyone’s on an improvement journey (a journey that seems to be long, winding, and exceptionally lucrative for a few). That Birmingham’s journey apparently only started in 2021, when for families it started years and years ago — and they had every right to have seen major improvements from 2014 when the SEND reforms came in.
Time is a luxury children don’t have
Time. That’s a luxury that SEND families don’t get. Our kids get one shot at this. Failure to deliver is life-changing. Our kids aren’t local government managers. They don’t get to crash the clown car and move on to another well-paying gig with no meaningful personal or professional consequence. Service failure for families like us is always painful, sometimes indelible, occasionally lethal. And Birmingham families’ patience is now running out.
- A response to our letter to Ministers about the SEND Review
- Shameful: Birmingham’s SEND has failed a generation of disabled children
- Are new SEND financial accountability measures compatible with lawful SEND provision?
- Chaos, mistrust, poor inclusion, and no communication: How Kent’s SEND provision has failed its disabled children and their families
- Surrey gets a spanking from Ofsted in its SEND inspection
- The EHCP statistics 2022 don’t tell the whole story. And see who topped the new EHCP LA Hall of Shame!
- Failure to specify and quantify SEND reports – what options do families have?
- SEND Tribunal 2022: With a 3.7% LA success rate, what will it take for the Government to finally understand the law matters?
- The £70 million council costs of fighting – and losing – against parents at the SEND Tribunal
- Human Rights, The Equality Act and Inclusive Education: The 12 changes the #SENDReview Green Paper needs for a paradigm shift
- Why the DfE’s SEND Adviser,, Tony McArdle, is wrong, wrong, wrong: Matt’s Director’s Cut
- Don’t make it harder to get EHCPs warns Equality and Human Rights Commission as DfE considers “raising the bar”
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- How does the Government intend to fund its new SEND Improvement plan? - March 29, 2023
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- Serially flawed, frequently unlawful: DfE-ordered SEND “Rapid Improvements” still barely visible in England’s biggest council - February 16, 2023
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