Unfair Dismissal from Nursery - Emotional Distress

[ImSoExhausted]

Hi, I'm looking for some generic advice over issues I'm having with my current nursery provider. My son has been in attendance there for a year, was on the ASD pathway when he started and received his diagnosis in June. (This is going to be a LONG post, I apologise 😩)

Backstory: DS was previously in another nursery that was across borders from where we lived. Because of this, the local councils couldn't agree on who should fund his 1-1 support. Health Visitor and SENCO for that nursery told us we should move him to his current setting. This nursery is a Scope special needs nursery and also provides mainstream care too. We were assured that in this setting he would receive the right level of care.

Since DS has been at this nursery, we have had 4 or 5 meetings regarding his development, EHAT and EHCP's. The latest one of these was on the 25/10/17. In this meeting it was explained they had applied for funding for 1-1 through consortium (council run I think) and that this was greatly helping my son and his behaviour.
I found this odd, as in a previous meeting in May, they told me 1-1 funding no longer existed (this is documented).

So I left this meeting feeling fairly confident that they were doing the best for my son, it was agreed that they needed to be more thorough in their documentation of my sons behaviour when applying for his EHCP, as we had previously been rejected due to their report. (The council said their report made it seem like they were coping okay with my son and didn't need the additional support)

On the 16/11/17 I received a call from the Manager requesting a meeting with me and DH. When I pressed her about the topic of the meeting she confirmed that she was terminating my son's place from January. She said she felt she could no longer safeguard him and that she had had this feeling for 'a few months'.

We attended a meeting on the 16/11/17 where the manager describes a whole host of behaviours my son has been displaying, one that was very worrying was that he had pushed past a child, ran over the the fence, his leg over the fence and almost escaped. Apparently, the staff member ran to make sure my son didn't escape and as a result of this, a little girl fell of the climbing frame and broke her arm.

I feel this is unfair to blame my son for that incident. He had a 1-1 at the time of this, so whatever the amount of children, there should have been 2 staff members present, 1 of which should have only had eyes for DS, the other should have been watching the other children.

They also mentioned many more incidents of him trying to tip over hot food trolleys, escaping rooms, smearing nappy contents over the walls etc

When me and DH expressed our concerns that we had not been told of ANY of this behaviour, the manager said she thought the room staff had been telling us. She agreed that she needed a meeting with staff but that DS's place at the nursery was still being terminated.
I requested that the incident reports for these near misses and accidents be sent to me, as well as the risk assessments for when DS is in the room.

The next day, i received a risk assessment that was incomplete and 67 days out of date. I also got 'incident' reports from his time at nursery. Huge chunks of time are missing where nothing has been mentioned. There is absolutely no record of any of the incidents the manager verbally mentioned and that are essentially the reason for his dismissal. Also, these reports have never been shown to us.
There is errors with dates (some dates he wasn't even at nursery)
There is no signatures on 6 of the reports
There are some entires that are just things like 'DS was off today' or 'EHAT meeting moved to another date'
My argument is that these are not incident reports, more ad hoc daily run downs of SOME of his behaviour.

It has also come to light that they never bothered to apply for Higher Needs funding for my DS. Nor did they apply for top funding they're entitled to when a child in their care receives DLA.


My question is, legally where can we go from here? They have no paperwork for the incidents they are claiming is the reason for dismissing him and they have out of date and incorrect risk assessments. The amount of emotional damage this will cause my DS is catastrophic. He is non-verbal, and this distribution in routine is going to be horrendous.
But aside from that, they have put him and many other children in danger by having inadequate policies.
Also, if they carry on with the termination of his place, is it not disability discrimination? They haven't attempted all avenues of help, nor have they correctly documented any incidents. Also, we have never signed any type of report or been notified that termination of his place is even a possibility.

Apologies for the long post, I hope it makes sense!

[ImSoExhausted]

Anyone?

[Starlight2345]

To be honest I would move your DS. They are not managing him.

I kept my DS in a nursery I had concerns for a year after it was taken over as I thought he would struggle with the move..A year is a long time.

I realise you have posted in legal and can't really answer from that point of view

[ImSoExhausted]

@Starlight2345 we are moving DS, he's never going back again after the reports we received. No idea where he will go, it was deemed the only suitable nursery in our area. Feeling very lost at the moment!

[burntup]

I would write to ofsted. My friend had something similar but no where near as bad and it is now noted on their ofsted page.

[ImSoExhausted]

I have phoned ofsted who said they will investigate the multiple incidents.

I'm interested where we stand from a legal point, I'm not particularly interested in compensation or anything like that, but I do think there are instances where they have broken laws, especially about disability discrimination

[eastlondoner]

The nursery serving notice because they believe they cannot continue to safely care for your child isn't disability discrimination.

[Caenea]

In terms of the incomplete reports etc, you should be able to demand a DSAR (Data Subject Access Request) which is essentially a record of ALL information they hold on DS.

Telephone whoever owns or runs the nursery. Raise a query with them regarding the incomplete paperwork. Advise you have serious concerns. They are obliged to address this.

OFSTED have already been made aware, so that's good.

It isn't disability discrimination, but it sounds like a duty of care failure. The owners of the nursery (council or whoever) should have a procedure to follow in instances like this, and you need to find out what it is.

[ImSoExhausted]

@eastlondoner is there a query to be raised if they haven't explored all avenues of help available though? This is advertised as a special needs nursery and they have failed to apply for higher needs funding and for a long term 1-1, even though the council have confirmed they would have been entitled to it.
Does deciding upon dismissal because of his behaviour (which is caused by ASD) without having sought the correct procedures and help, not mean they are at fault?