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

There was a child in my DD nursery who was violent. To the point my dd would not go in. The nursery did eventually remove him. They are required to provide a safe setting.

However much i had sympathy for the parents, it was the right answer.

I understand how hard this is for you as a parent, but ultimately if the nursery can't cope with his behaviour, what do you want them to do?

I'm a childminder and have once had to terminate a child's contract mid-EHCP process as I just couldn't manage his behaviour and give enough attention to the other children.

No one ever suggested it was an illegal exclusion! And my LA were very supportive towards me fortunately.

Hopefully this will really help your EHCP application though as it is very clear evidence that a mainstream setting can't manage?

But lack of protection for SEN goes the other way in schools.

ive had to move my DD out of school due to a Sen child targeting her and assaulting her and injuring her. it was all bells and whistles and lots of 'positive reinforcement' when the child in question is injuring my DD and others.

my DD and the other children haven't been protected against the violent SEN child. It works both ways.

(I also am ND and my DD is in the pathway before anyone comes at me)

Your situation sounds so difficult.

What are his exact special needs?

Is he being supported and are you looking into getting a diagnosis?

If you re able to, and given his age, the best thing would be to stay home with him and attend toddler or play groups, where you are with him at all times and can teach your lovely son the social skills he needs to learn so urgently.

Is he getting SALT? SALT sessions also teach taking turns, communicating needs and vital basic social skills. You have to prioritise your son's social and communications skills by teaching these to him yourself and also with specialist support (SALT / special play groups). If you can stay home with him before he starts school you could attend a range of groups, SEN and not SEN so he is exposed to a range of behaviour and children.

Leaving it up to others isn't going to work I'm afraid, I know this from personal experience.

I think a few things, but firstly I’m sorry you’re in this situation, I imagine it is incredibly difficult for you and you’re pissed off at the situauton you find yourself in.

firsfly, it is not illegal.
secondly, it does appear they tried but couldn’t manage the situation appropriately, to the point they had to go for immediate termination.
thirdly, Don’t focus your efforts on going after the nursery, they have a duty to all the children there,
fourthly, it’s a nursery, I very much doubt they just want “perfect”children, as no such child exists, more there is certain extremes of behaviour that impacts others, that if continuous they have no option but to exclude.
fifth, please don’t use the behaviour you witness as a barometer for what rhe nursery witnesses on a very different setting with many children.

anyway, I’d look to a day nanny in the home personally until you get everything sorted.

Education professional here. No it’s not an illegal
exclusion as this doesn’t apply to private nurseries. I think you would be better to find a nursery that can meet his needs. Although where I live there are long waiting lists for nursery places so I don’t know if that’s a factor where you live too. (As an aside my DP’s DS is autistic although this is a recent diagnosis. When he was in nursery he was hitting and biting. DP moved him to a different smaller/quieter nursery and the hitting and biting stopped. So maybe this is a good thing and you’ll find somewhere better suited to him.

As others have said pursuing an EHCP as early as possible will help you in the long run. You already have evidence. Get that started.

This is quite a selfish approach though, the nursery has a duty of care to keep other children safe too. They 'got away with it' because they are allowed to. It's their discretion as to who they have in the nursery and if they feel they cannot meet a child's needs and other children are at risk, they are well within their rights to execute a termination of a contract. Why did you report them to ofsted?!

Thanks, yes I never use the home behaviour as a gauge of how he was there. Ive also never argued that things weren't happening - we have worked with them throughout (although more on the logs I've been sent than we were informed of as non required a us to sign the incident forms). It is arguable how much they tried to implement things as most on his review were "we couldn't implement that" or "it confused other children" when it was things like having toys to fiddle with.
I will be putting my efforts into getting the EHCP and the school place.

Thank you - this is very helpful.

This sounds awful. My son is now in specialist school in Year 6 and we are praying for an appropriate secondary placement. We were lucky with our nursery in that the senco was very passionate about supporting autistic children and made the high needs funding stretch to a 1-2-1 support during the times of day he needed it. Unfortunately school were not at all proactive or helpful and refused to apply for EHCP until they tried to expel him in year 1.

My advice is find a school with a good senco. If your son is able to manage with adaptations then great and they will put it in place. If not they will have the experience to help get a specialist placement. We never accepted home school as an option - once school said they couldn’t meet need we made it clear our son wasn’t to be at home during school hours and forced them to provide alternative provision until they found a school which took a year (for no good reason).

Does the local primary have a nursery attached? They may be better at starting an EHCP application as they will be looking beyond next September. It will also mean they know him and can accommodate better in the classroom. My second son did his final year in nursery at school and it helped as a lot of children knew him already and the school knew better how to manage him.

I don’t necessarily think it’s illegal exclusion but I would still complain, but I wouldn’t send my child back where they aren’t supported or wanted. It’s hard to say the level of support you son needs - mine is extremely violent when dysregulated and nursery managed to keep him away from the other children at these times.

Oh please because that’s SO easy. 🙄

I don’t think it would be classed as an exclusion OP as it’s not really a school? Private nurseries are different. I’m sorry you’re having to deal with it all, it’s exhausting.

At work we had one or two similar children and these would be shadowed by a member of staff to try and intervene. Obviously some nurseries only have X amount of staff to meet ratios and none “spare” to oversee children individually.

Thanks. Yes, we are doing a lot of work with him. He had 4 sessions of SALT on NHS and we have already reached out privately so should be starting private soon. We attend groups, including a forest school group. We have always been proactive and will continue to be. Early support is most successful.

Thank you for sharing your journey. I'm so glad you had some success although I'm sure it wasnt an easy journey. Wishing you all the luck for an appropriate senior placement

DD1 has a scar on her face from a child who repeatedly hit her with his hands or with toys. I tried my best to be sympathetic to the situation, but it was a completely horrible experience and I will never forgive myself for not withdrawing her sooner. Like you, we didn’t have other options, but she was being physically hurt regularly and once should have been too much. Being “understanding” got me nowhere and unfortunately in our case, the nursery were too scared to be accused of discrimination to remove the child doing the hitting.

You want other parents to be more understanding of your situation but you don’t seem to give them the same in return. Their children are being hurt and no amount of the parents being “understanding” is going to change that. I’m sorry the nursery can’t support your child, but ultimately it’s a private business and has a duty of care to the other children.

Believe me, if you were the parent of the other children, you would believe the right decision had been made. It’s not easy for you but it’s trust me, it’s not easy for us either.

Please do read my responses as you will see that I have complete understanding for how parents like you feel, never have said it is ok that he has hit or excused it. I am sorry this has happened to you and you would have every right to have spoken up. That doesn't change the issue that it is legal to not support these children.

Unfortunately theres no requirement for private nursery’s to provide universal access. That means they can terminate their contracts with anyone where it’s not working for whatever reason.

My understanding is that there’s also not a state requirement to make provision for early years places. Councils have to provide funding, but theres no requirement on them to ensure every child can access a space. And that’s the gap that you’re unfortunately falling into.

The best approach for outcome to effort is likely to be pushing hard with the council to make progress with the EHCP, and speech and language support in the very near term (even before the EHCP). Use your health visitor as part of this. If they say that not being in a setting is an issue, flip that round to them to find a setting to enable them to progress the EHCP.

Support from the previous nursery will help, and you’re no longer their customer, so keep that in mind in how you engage with them. A ‘please can you help by providing everything needed for the EHCP’ approach is likely to get you a better outcome than the formal SAR approach. That can sometimes bring a legal compliant minimum type reaction, whereas you may benefit from information that they could provide that doesn’t exist as records yet (so wouldn’t come under SAR).

It's not the same as state funded schools. Private nurseries can remove children if they seem to require 1 to 1 staff. They have to look at it from a business point of view, they cannot afford to run if they have to pay for extra staff to look after one child each. That's how it is. I'm sorry this happened to you. You're best researching a specialist nursery that supports children with additional needs.

Yeah, I came onto say that. I've never known a child of three to hit.

They sound a bit shit to be honest! My DCs’ nursery employed a senco and she was excellent. Helped loads of parents with resource and ehcp applications. I would see about a nursery better able to manage him. They sound unhelpful. I do wonder whether you have grounds to hold them accountable under discrimination law, but I would focus your efforts on getting what your DC needs and looking forward rather than looking back. You only have so much in your tank. Better to use it for positive results!

I am sorry to read you are going through this, I went through a similar situation with my son and his nursery. To be honest your son is better off being at another nursery who can support his needs better.

I think it’s honest if the nursery that they can’t ’meet his needs’ he clearly has more complex needs than they can manage. They also have to think about safeguarding the other children. Whilst your child may have additional needs that does not mean that other children should not be protected from being attacked. They have been honest and said they can’t manage the situation so you will have to find somewhere that can.

The nursery is within it's rights to exclude your DS.
Like others have said parents aren't going to be happy that their child is being hit all the time and they don't want their child to be scared of going to nursery. Imagine if it was your who's child was being hit a lot.
I have huge sympathy for you though. My DS is non verbal, autistic and not potty trained (he's 5). He's not violent and did quite well at nursery but school has been a massive struggle and he's not supported properly.
If you don't have an EHCP he won't get in to a special needs nursery but you may find a smaller setting that suits him better.
I'm really sorry you're going through this but it's not nursery s fault. I hope you can find somewhere better that supports him.

Bless you, this sounds so tough!

As a parent but also as a SEN educator I can see both sides. You need to be the voice for your child! Have you looked at an alternative provision for your child? Forest Schools are incredible for neurodivergent children and from my work, I’ve seen a lot of SEN children thrive in this environment.

Thank you. This is really helpful. Im sorry your son is having such a difficult time. I hope things improve soon. It is tough as we get so much "find a specialist setting" like that's something thats just an option and not needing an EHCP, entire process and a fight. They are also like unicorn poo in this area...

OP have you looked into school nurseries? Or nursery schools. They don't do waiting lists like that. It's distance based.