Legal advice - is this disability discrimination?

[SozHaveToNameChange]

DS is in Y9 in a partially selective mainstream school. He has ASD but got in on a selective ticket with some other pupils from his school. Normally the pupils who get in by selection are put in the top stream, but not always. The other pupils from his school all got put in the top stream at the start of Y7 and he didn't, although one of them was only one mark above him. He had 5s and 6s for his SATs. He was put in the next one down.

He doesn't have an EHCP but they've just started the process of applying for one, rather late due to a stand in SENCo who didn't want to start the process until a new SENCO was appointed a year later. He has had some support in a couple of lessons.

His marks are good in most subjects, especially the sciences and maths where he's one of the top 5 or so in his class for each. He is very bad at the language they all have to take (French), really can't retain it at all, and it's fair to say he's one of the bottom of the class, and he's average at most of the arts things but exam results put him around the middle of the class, not the bottom.

He's just been told that he's on a GCSE pathway which is way below most of the others in his class. This means he can't take triple science, which is the thing he's good at, and he's got to take extra maths and english lessons which he clearly doesn't need (he's working at a high grade 5 GCSE (C+/B- in old money) in maths right now according to his test results, and not much below in the sciences. English isn't wonderful, but salvageable, and again he's not at the bottom.

He fiddles around and doodles in lessons, and looks like he's not listening, but his test results clearly show he is. His head of year is also his French teacher, so obviously has a very dim view of his abilities because that's all she's seen. In her class he fiddles and doodles but still has rubbish results.

Putting him in the bottom stream will end any chance of Uni - he'll be doing things like citizenship studies, PE and PSHE for his GCSEs. I'm furious and thinking legal action - what would my chances be?

I'm really sorry, I know that this must seem very minor in comparison to what a lot of you are going through, but this is all he has. He's shunned by his schoolmates, eats lunch alone, is quite a happy lad generally but finds it difficult to talk to people his own age. One of the few things he likes and knows he's good at is science, but this is going to finish any idea of him finding a job in it, isn't it?

And - not to drip feed - but there's never been any suggestion of behavioural issues. He's generally one of the quietest kids in a very noisy class.

The short answer is no, this is not discrimination.

It may be unfortunate, it is possibly unfair, but there is a big step to legal discrimination. Discrimination would mean that education is being denied on the basis of a protected characteristic, and from what you have said they are a long way away from this.

If he entered selectively then there is a chance they have put in extra english/maths because according to their measures he is below the value added requirement for his start point. This is purely a guess, it would certainly be worth asking.

It is also possible that him finding English more difficult is one of the reasons they have him in a different set than you might have expected.Again, worth asking.

To your main concern, which is future University and job prospects, I would not be concerned. Students are only ever as good as the last thing that they did, and by the time University is on the radar that will mean his a-level results and predictions.

If he is expecting to gain grade 5s or better in pretty much every subject then he will have a clear route in to A-Levels or a Level 3 vocational course, depending on his preference, and Universities accept both for UCAS purposes.

Streaming is always going to be a massive problem for any child who isn't at a consistent level across the whole curriculum. I'd move him to a school that sets by subject or teaches mixed ability.

Also, our local 'outstanding' sixth form college requires 5 GCSEs at grade 4 and above for A Levels (and get remarkably good reaults).

Thank you all for your replies, and some things to think about. Yes, we didn't realise when he got the place that streaming would have such a massive impact, although maybe we should have given that he's so good at some things but so bad at others (there's the attention thing...). The only thing he's really bad at is French though, he was getting better in leaps and bounds in English, he could easily make a grade 4/5 at least by the end of year 11 (given that his marks put him at around a mid 3 now).

We've asked to speak to someone at the school but so far no one has replied. We've contacted the SEN team and they also haven't replied.

If you find no one is returning your phone calls, do what we did. Go down to the school and ask to speak to someone, and be prepared to wait until somebody does come out to talk to you.

We got to know the receptionist quite well . But DS didn't go back the following year.

If or when you get the draft EHCP you will be able to nominate a different school, including mainstream schools that are nominally full in his year group. In your shoes I would think seriously about moving him to one that does not have streaming, and also getting him disapplied from French.

@tanjanavarro it's bloody rude to spam a support forum with your survey. Please stop.