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

Well that’s a nice thing to do, and very at odds with your previous opinions. Helping this family to get the assessment will help them provide their local authority with the evidence they need to get the appropriate funding and support for their child’s education. This can often be the missing link between accessing the support and not. NHS can be a postcode lottery, PALS and persistence can help hurry things along or if you can go private do it. The funds are there it’s accessing them that is tricky and although disabled children are entitled to this it doesn’t just come to you, I would advise anyone to use every resource they can, even crowd funding on facebook if necessary

So what should I do as a childminder if I can't manage a child's needs? If I terminate the contract I risk having a discrimination claim made against me??
Would you prefer early years settings just don't take on any children who possibly have additional needs?

It's private so it's not illegal. However, I would look to use to to your advantage. If he has additional needs to this extent this is very good evidence to get him support ASAP. School nurseries are typically better as they have more experience with SEND and will have a SENCO who can give you better advice.

I don't understand. Why would you want your son to remain in an environment where the staff cannot meet his needs and where his behaviour is detrimentally affecting other children?

Look at another way.

Why would you as a parent put your child in a care setting that states they cannot meet their need?

I have an older ASD child and I chose to fight for him to be in the right place, not the wrong place.

Surely you have much bigger fish to fry op regarding your son and his immediate future and indeed from September 2026?

Whist I agree, if it were illegal i dont feel thats something I would just need to accept because I have other things to do. By sound of it, it however likely isnt illegal, which is what I wanted to know.

It absolutely isn’t illegal op.

Yes, so it seems from the posts. Thanks.

I have twins with sen needs and I have Sen myself - so I do get it - but my kids were on the receiving end of kids with Sen needs who physically hurt them and one of them initially started school refusing the first week of reception due to being frightened to go to school because of it, and the other after a longer period of exposure ended up in play therapy to try and teach him how to avoid other kids hurting them.

if someone throws a ball at you and it’s heading towards your face - you have a few seconds to process you might get hit and you can either move out the way if there is time or you can use your hands to protect your face. Worst case scenario you do get hit in the face, but at least you know why it’s because a ball was thrown and coming at you

It was frightening for my small children going to school with the prospect that at some point they would be hit or kicked for no reason and no prior warning to protect themselves. My daughter was four when another girl with Sen needs would kick her while they lined up - my daughter thought this girl had it in for her - and while it helped when I explained to her that the kicking was not personal - this girl was struggling to communicate and lashed out due to strong emotions … explaining that to 4 year old was not easy.

and my son - he got the most because more boys were physical. I would have some lovely mums come up to me and apologise to me/ him that their son kept hitting or kicking him - it was apparently because they wanted to play with him and didn’t know how to initiate this. Which I get, and my son aged 3-5 had to get as well - but because he then didn’t stand his ground and set boundaries it was not ok to hurt him … other neurotypical boys saw him as weak and he became a punch bag for them too. Play therapy helped him learn how to set boundaries without him being physical to others.

i get why you want your child to go to nursery - but hitting other kids will be having a physiological affect on them, please do not minimise this because your son’s peers are toddlers / very young children and can’t express themselves but being hit is not something they should be expected to put up with

I don't think it even counts as an exclusion, as it's just a spot at a private nursery.

Sorry to OP that this has happened, must be very upsetting.

You may have a basis to complain on the grounds of discrimination because of any SEN/disability needs your child has.

The nursery must make reasonable adjustments to accommodate any disabilities, but I would say it would be a mind field. Probably better looking for a more supportive nursery and moving forward rather than getting stuck in a battle.

Absolutely. I've never excused his actions, or said it is ok. This is solely around legality and the fact, despite doing everything we were supposed to do, we are in this situation.

If you discriminate against disability you risk have a claim for discrimination brought against you.

Op you can’t force a private nursery to take a child they aren’t equipped for, nor can you force them to equip. It is not illegal for them to refuse a child if they feel they cannot manage the child appropriately

i know it’s hard for you, but you do need to accept this.

It is not discrimination for a private business to not be fully equipped to care for any disability. It’s utterly ridiculous to suggest it is and start trying ro scare people.

I have accepted this now understanding it is legal. I can't not accept it if it is legal. However, doesn't mean I have to accept there is no system to support children with additional needs and protect them/ensure support is in place when this does happen.

I'm not trying to scare anyone. Part of running a business is that you have to make reasonable adjustment. If in this case the nursery has made reasonable adjustment then a court will find in their favour. Private nursery's make a fortune they can afford to follow equality rules.

He needs to be in a setting where the hitting is effectively addressed and stopped at this age, the longer it continues the more normalised it will become for him and you'll have a much bigger issue once he's a bit older.
That setting clearly isn't managing that and it's detrimental to him as well as the other DC.

Your child needs 1:1 which the nursery can't offer due to staffing and funding. Nothing wrong with the nursery doing that. Your son needs extra support

As a parent of a child with SEND, you are going to have many battles to fight to get your child the right support. My advice would be to pick your battles. Funding for SEND support is incredibly hard to access following 15 years of deliberate underfunding- you need to focus on next steps.

You’ve acknowledged that the nursery has not behaved illegally. There’s no point in seeking retribution for them terminating your contract- it won’t change anything. Clearly it was not the right setting for your child.

If you have a primary school with a nursery attached, it might be quicker to get the assessment process underway there. However, it’s likely to be even busier and with far lower staff ratios than a private nursery, so your child’s dysregulation might increase. Have you considered smaller scale settings such as a childminder, or even a nanny if affordable?

You also need to be very careful about justifying your child hurting other children- it isn’t ‘standard’ for this to be an everyday occurrence at 3, even when children have SAL issues. There may be parental support courses available in your area- you might want to consider accessing these, even if you aren’t convinced they’ll be helpful, because your local authority might signpost to them as a first response in your child’s assessment process. I’m not suggesting that your parenting is the problem, but it’s often helpful to show that you have already engaged with all available support.

What do you consider as discrimination in terms of childminders and nurseries?

That's a huge risk to expect a small business or individual to take to say 'you'll just have to prove it in court'.

The lack of funding and support for children with SEN is a scandal but it's the fault of the government, not the nursery staff who can't manage on a 1:8 ratio.

Hi. It's not illegal as nursery isn't compulsary the way school is. It's parental choice to send your children to a nursery whereas you legally HAVE to send them to school.

It's part of running a business. That's why I'd start with the SAR request. See what the nursery has been saying internally about the child and what risk assessment/adaptions are in place. If the internal comms are like so and so is a little bastard we need to get rid of him, there is probably a stronger case than if they have been putting in place measures to support the child and reached the end of what could be considered reasonable.

Thank you for your response. I have already contacted local school but no response yet. I would also need wrap around care.

Again, I'm not justifying his behaviour but sharing what I was told, and always distinguish between the reason and excuse. There are reasons he hits, but thats an excuse for it. I have already engaged with all the "parenting" cpurse stuff in prep for this pausing me before they accept EHCP application etc. Fortunately, the one thing that has kept me sain in all this, is both the setting and LA saying we are doing everything we should be doing and doing it correctly. Apparently that still leaves us here.