Is this an illegal exclusion? Nursery

[MumTeach88]

My 3.5 year old son was kicked out his nursery. We have been working closely with the nursery throughout and he has additional needs. We have a SEND support arrangement in place as well.

We were called in for a meeting and they informed me they don't feel they can meet his needs and that he isnt coping and is "impacting the other children". My hand was metaphorically twisted and I said "is this you saying I need to find another setting?" Long story short, yes, this was what they were doing. I agreed i would and they agreed they were happy to have him until I found one.

2 weeks later (him having only been back a day and a half as we were on holiday), they called me. They were beating around the busy and I said "so you're kicking him out?" They tried to say words around it and that it wasn't they were kicking him out, I asked "So he can come in next week then?" They said no. My husband then called them later and they confirmed they were terminating his place immediately.

I have documents with that they have done (or not as the case was) against the Support Plan. Their main issue is he was impulsive and where he has SAL issues, he can grab and hit. Now, I totally understand that's difficult, but having received rhe behaviour logs under an SAR and shared with someone working in another nursery, they feel that it is actually fairly standard 3 year old behaviour to snatch a toy or hit a child when you can't communicate. Obviously I understand this is an issue, and would never want to have my son hurt someone, but we were working with them (so we thought) on this with social stories, support plan etc. Among other things, they have issues that he cant sit still for 20mins, can't use cutlery proficiently and needs his suncream applied 1st due to allergies. They also take issue that he is not potty trained (despite us trying twice and working with them on this).

The long and short of it, is this a legal exclusion? As far as I am aware they have not submitted to LA. The nursery is independent but under OFSTED. Thanks

I'm so sorry. Something similar happened with my son. I fought it and got nowhere. Ofsted didn't care, the LA didn't care. He's now thriving in a lovely private school with an EHCP but I'm still angry and bitter about the way nursery treated him/us. Someone else more knowledgeable might be able to give more advice, but from my experince, the system is stacked against us.

As he is not school age it is not an illegal exclusion. Is he in receipt of early years funding? Does he have an ehcp, if not can you apply for one?

I could be wrong but I don't think illegal exclusions apply to private nurseries, that said if there is a SEND arrangement in place the LEA should be closely monitoring that. The issue around needing sunscreen applied first, not being able to use cutlery, not being toilet trained etc shouldn't be a problem for them - they shouldn't expect a 3.5 year old to sit still and focus for 20 minutes that all sounds like excuses.

But clearly they don't feel that they can meet your sons needs - you could insist on a meeting with the LEA and the nursery to discuss the SEND plan or you could find somewhere that could better support your son, early support is crucial. What support is he currently receiving for his S&L issues? My son had a severe S&L delay but he had a speech therapist going into his private nursery weekly (paid for by me) and a 1-1 at nursery who also worked on his speech (the 1-1 was LEA funded).

I completely understand that this feels like your son is being excluded. It is not illegal however. Also, I think the nursery are actually being very honest with you that they cannot meet his needs. They could have easily lied about why they are giving notice. Or they could have continued not meeting his needs which would only be damaging to your son in the long run.

If he is hitting other children a lot I wonder whether other parents have complained which may have been a factor in why you have been given notice?

Have you managed to find another setting for your son? It is also worth asking your LA for support with S&L. Most LAs have support available for early years children although how good this is depends on your individual LA.

I don’t think it is illegal exclusion when they’re not compulsory school age. My advice though for what it’s worth is channel your time and energy into finding a setting that can support him rather than fighting one that doesn’t want to.

Ofsted guidelines state that if you have a child that is negatively impacting other children’s wellbeing, then it is perfectly acceptable to terminate that child’s contract.
And it seems that is the case here.

It’s not “fairly standard behaviour” for 3 year olds to hit each other. No wonder they are looking to remove him from the nursery. It must be awful for the other children.

My eldest went to a nursery for a while, and a child there was excluded as they couldn’t “meet his needs” and he was violent towards other children by biting and hitting them and also staff.
This was a private nursery and within the contract, there was a clause about behaviour and meeting the children’s needs - it was all very sad and stressful for the parents, but ultimately the nursery were within their rights to terminate his place as he’d attacked so many other kids and staff, people were threatening to remove their kids if something wasn’t done about it and staff were also threatening to leave if it wasn’t resolved.
The parents called offstead who came in and agreed with the nursery that they had documented everything and that the situation was un-manageable, staff, other parents and the owners gave witness statements and the decision was upheld, and when they spoke to a lot of parents they said they were paying a lot of money (this was before all the new funding!) and that their kids needed to be safe and not attacked, which is exactly right.
It must be extremely stressful for parents in this situation especially if they work and need childcare provision, but if that was my child and a setting said “I can’t meet their needs” then I’d be actively supporting that to get a more suitable placement, maybe somewhere smaller?
The child in question went to a childminders where there was a lot less children and it was a smaller less noisy setting and was much better there. It was later identified he had autism and adhd and just struggled to cope in noisy environments.

I'm sorry that this has been the outcome @MumTeach88
You must be feeling so defeated.
Has your little boy got an EHCP?

To add
my sister in law uses a nursery and they now have (in addition to the contract) a behaviour policy you have to sign and this policy is used in cases such as this.
with the new funding spaces are sought after and so nurseries can also pick and choose their children.

Grabbing and hitting other kids at that age isn’t acceptable. If they can’t manage him due to his SEN then you need to find a specialist nursery.

Sorry to hear you’re already having problems with ‘schooling’ OP but as others have said, it’s not illegal exclusion. My DD had similar issues and I realised fairly quickly (twenty-odd years ago) that temporary homeschooling was the only answer. Would that be a possibility? I haven’t rtft so I’m sorry if I’ve missed mention of this as an option.

My nephew had similar difficulties. His nursery withdrew his place too as he would hit other children. I feel for you but also understand the nursery’s stance.

If he's hitting other kids regularly, it's likely other parents are complaining. The nursery has to balance the needs of all the children there and it is better for them to be honest if they are not able to provide the supervision and support needed to regulate him so that other children aren't getting hurt.

He may need a smaller setting that may be less overwhelming and lower staff to child ratios so they can intervene earlier to try and keep him calm and avoid hitting. They are doing you a favour in a way by pointing out the developmental delays so that you have more evidence to demonstrate the need for a more specialist setting, ETA although appreciate it may be hard to hear.

If you don’t already have an ehcp, this exclusion will be the evidence that you need for that, so get the nursery to confirm in writing. That will let you get one before he starts school which will be hugely helpful.

It must be absolutely horrible for you that this has happened, im so sorry. In your position, if there is any way that you can fit work around it, I would try the nursery/pre school attached to the primary school he will go to. They’re less likely to exclude and more likely to be able to adequately support with his Sen needs.

It may be the best thing for him. If he's hurting other children it sounds like he isn't happy or suited to the setting.

Perhaps a nanny share with another SEND child might work for you? I know someone who does this

The posters are correct in telling you that this is not an exclusion. Nurseries operate in a unique situation in that they are a business but also draw government funding and have an agreement in place with the la for the provision of childcare.
The LA are in the position of ensuring sufficiency of places and this includes meeting capacity for children with emerging and identified SEND.
Did the nursery apply for inclusion Fund/SENIF? An additional top up to the hourly rate to support enhanced staffing? Did they offer any strategies as part of the graduated response?
All behaviour is communication and likely that your child requires support for his speech, language and communication development.
there is a wealth of information out there and a trusted source is the website ‘speech and language uk’ (have support for parents and professionals)
You could also apply for an education health care needs assessment which, if needs are evidenced Your son will have an EHCP in place.
the sunscreen excuse would not stand up but I feel it’s really the impact of other children and they are having problems ‘managing’ his behaviour.

Whilst I empathise the nurserybhave a duty of care to all children in their setting. If your son is using violence as a communication method then they have to safeguard the other children. The nursery funding from the government fmdoesnt cover the true costs of a NT child's need and certainly does not allow for 121 support, does he have an EHCP in place? Even EHCP doesn't fully fund a 121 in almost all cases.

It sounds like they are struggling to keep other children safe from harm whilst meeting his needs.

Without the exact policies for the nursery it is impossible to say if they are in breach of their commitment and duty but honestly I would say they are probably not doing anything wrong.

I have s child with SENDs. The nursery was in their rights, as annoying as that is.
You need to get a good (!!) EHCP in place now, it’s not going to get any better in school - he probably needs a 1-2-1, and that takes ages and a lot of fight. Start yesterday! It takes years. The nursery exclusion is a good piece of evidence, and you have less than a year to get it into place.
If you work, you also need to find a SEND experienced childminder NOW. Holiday clubs can (and will!) exclude children as well, and finding holiday care for children with special educational needs is incredibly difficult.

I wont comment on the is it legal aspect as I dont know

But I certainly wouldn't want to send my child back there.

I do also think you are (understandably) minimising the impact of his behaviour on others. If your child was regularly being hit beaten / injured you wouldnt be happy with the care the nursery was providing and they cannot provide 1:1 care ratios.
It is also quite late for potty training - if you / dh are off with him now it might be a good time to "crack it" so its one less thing to deal with.

I'd focus on getting an ehcp vs giving the nusery what for.

I feel for you. This happened to my son in march he was 33 months. He has developmental delay, alwhich has been identified and recognised by our LA. there was specialist teaching reports in place to support his difficulties and behavioural.problems but still the private nursery excluded him without properly demonstrating how they supported him.using specialist teaching from the LA.. they got away with it and they know they can. I reported to ofsted, following nursery complaints procedure and it appears as if they have got away with what they did. The whole system stinks

They have to safeguard all the children at the nursery. I would be very annoyed if my child was at the receiving end of yours, I’m going to be honest.

Perhaps a more specialist setting would be more appropriate for him?

They are allowed to exclude him. And tbh you are better off finding a nursery or childminder that will meet his needs better. Ideally you also need to start pursuing a EHCP. I’d contact your local authority for support. Ours has a team called portage that works with under 5’s with Sen and sendias that supports parents.

It is, actually.

Not every child, but it is certainly within the scope of perfectly standard behaviour for this age. Merely putting ‘three year old hitting’ into google throws up a wealth of resources and links with advice.

For children who are prone to this (my oldest child was) it does generally peak at around two and taper off between three and four. A lot of it is connected to communication skills which is why some children with additional needs can appear aggressive; it’s the lack of communication.

That obviously doesn’t mean other children are sitting ducks but a good nursery should have strategies available to manage this.

I’m sorry it’s happened, OP. I guess I’d be inclined to take him out anyway.