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

It's not illegal as nurseries and pre schools are a business. They haven't excluded him, they've terminated the contract as they cannot meet his needs and his behaviour has probably gone against their policy.

as a mum with a child who has been throttled multiple times by a kid with Sen, the need to balance out the risk vs benefit. There's a big chance other mums and dads have complained and they risk losing multiple children / profit over removing 1 child.

if they can't meet his needs it's not fair on them, the other children, or him to be there.

but there's nothing illegal here and fighting against it won't get you anywhere. Use this as evidence go help towards an EHCP.

Sorry to hear this op, as others have said it’s not illegal. Parents need to feel their very small children are safe while they’re at work so they will make nursery’s life very difficult.

Thanks for all the replies. It really is just the legality I'm interested in. Lack of protection for children with SEN this age seems to be low.
As I say, I understand other parents wouldn't be ok with this, but it is the reason not the excuse behind his actions. I have learnt pretty swiftly that if people don't have a child with additional needs, they don't get it. But then I guess I didn't get it to this extent before.
Specialist isn't an option atm as he doesn't have an EHCP and neither is homeschooling. He also is such a lovely, polite boy and these happen at moments of dysregulation, not all day.
We are starting the EHCP appointment but have already been told this will be more of a challenge as he isn't in a setting... catch 22! So probably of it being in place before school starting next Sept is low.

Ah this is so difficult, I’m sorry it’s happened to you. My daughter is significantly autistic and still largely nonverbal and a few years older than your son. I’ve been to SEN groups with kids there who will hurt other children and it’s the one thing I would find so difficult to cope with. I would say start the process of getting an EHCP as soon as possible, he needs one to one support, this is probably why they can’t meet his needs. If they are having to do this for him anyway it throws the child adult ratio out and makes it unsafe for all the children. With an EHCP there may be funding for another member of staff. Process is long though, you will probably be looking to get it sorted in time for school. Hope everything goes well.

So what if you get your son back in… would you send him back knowing that the nursery have thrown their hands up and admitted defeat?

Thank you for this. This is exactly how I am feeling. It is so positive to hear your outcome and hear from someone who gets it x

op the weird thing is that when he does start school if his issues as are you say and the school is pretty average, and he doesn’t have an EHCP. The school will put him on a. Time limited plan where he may be in school for even just 1/2 hours a day.

Find another nursery place? Did your nursery apply for high needs funding? You can also apply for DLA. Both do not need an EHCP

You can apply for an EHCP yourself. Look at your LAs local offer. Do they have an early years support team? Do they have area SENCos or Inclusion advisors? What about a SEND navigator?

To what end are you fighting this… to get your son back in to a nursery that patently doesn’t want him there?

I have been in your situation and honestly I do still feel bitter towards the setting that was not able to support my son’s needs. However, taking a fully balanced view, it clearly wasn’t working -for him, for the other children in his class, for the staff, and so we took proactive steps to find him a setting that could support him - that’s your job as a parent. Instead of looking into the legalities (honestly what would that achieve? You really want to send him back to a place where he can’t thrive?) focus your energy on getting into the right setting who will be able to work with him.

Wow.
You reported to Ofsted ?
Of course they “got away with it”…they have a duty of care to all the children, not just your child.

Hi, yes they had the high needs funding in place and we were due to start the EHCP process with them.
Between work times I have been collating the information for the SAR, contacting the LA and reaching out to specialist and non-specialist settings. Pretty consistent response I'm getting atm (when I do get them) is not high enough need, we cant help unless in setting or needs and EHCP in place. Comical part is the Support worker who put his plan in place states mainstream with adaptations on his paperwork. Obviously I will keep fighting and advocating for my child, but just a shame it is quite such a fight.

@MumTeach88 but surely you can understand other parents will be concerned for their children. How would you feel if he was being hit multiple times a week?

while they will understand the reason, the outcome, their child being hit, isn’t ok. I imagine, as others have said other parents have complained.

while I appreciate this will sound harsh, if you’re running a business and can choose between the fees of say 4 averagely behaved 3 year olds or one child who (even for entirely understandable reasons that aren’t his ‘fault’) is much more challenging it makes sense from a business perspective that they’ll ask your little boy to leave.

I do hope you get something sorted.

does your little boy have any friends you could meet up with to see how he interacts and help him on a 121 basis learn hitting isn’t ok?

Sorry OP but I think you're not doing yourself any favours by minimising his behaviour and saying it's "fairly standard 3 year old behaviour".

It isn't and you need to accept that in order to properly support him.

I don't know anything about the legal side but I do know that if the nursery cannot offer your child support and also ensure the safety of the other children, it's not the right place for him. I wish you the best in finding the right setting for your child.

It isn’t a decision that the nursery would have taken lightly…they have to ensure all the children are safe, I do feel for you, but legally you haven’t got a leg to stand on.
I am a childminder and have a child in my care with similar issues, it is very hard to manage, I won’t give notice as he is a lovely little boy, but I have to be so vigilant when he is here.

Yes, of course I understand how other parents would think and react. I wouldn't want in happening to my child, only difference is I would probably be more understanding. This also isn't him hitting children multiple times a day etc. And yes I understand it is a business. I just don't think it is right that they can turn around with a child with additional needs and throw him out without notice. We haven't been signing incident reports, we have been working with them and he has a support plan and funding.
This isn't around whether I agree it is the right setting, I actually think they were not as they clearly didn't want to deal with his additional needs.
We have social times with his friends and we quite honestly don't see this. We don't see anything like the level they quote, but then it is a very different situation so that is not me saying they were exaggerating either.

Standard 3 year old behaviour for a child with a Speech and Language disorder (to clarify sorry). It is also people working in similar settings saying this too me.

I never excuse his behaviour. It is the reason, not the excuse. This is why I actively put in place support and will fight for an EHCP.

The impacting other children part is how they will get away with it. That was the phrase that meant it was legal to exclude my Sen ds

Sorry this has happened to you too

This with bells on

Hi, I used to work with children in Early Years with SEN. I’m not sure on the legalities but every local authority have to have an independent SENDIASS service (Special Educational Needs and Disabilities Information and Support Service). They will be able to support you and advise on any legal aspects and your child’s rights. If you google you should be able to find yours. Good luck OP.

The impacting other children is surely a damn valid reason

I don’t understand to what end you’re challenging this

You want your son back there?!

Thank you, that is really helpful to know. I will look into that.

Absolutely not, I wouldn't want him somewhere they view his needs as an issue. Doesn't mean I don't want to know if this is actually legal or not. If it isn't legal, then if there is a way my reporting it will support other families and prevent them being in this situation then I will. If it is legal, then I will support anything to make changes and ensure children and families in this situation are better supported

Is he back in another setting?