Boyd and NATIONAL DISABILITY INSURANCE AGENCY (NDIS)

[2025] ARTA 2261

Boyd and NATIONAL DISABILITY INSURANCE AGENCY (NDIS) [2025] ARTA 2261 (27 October 2025)

Applicant/s:  William Maximilian Boyd

Respondent:  NATIONAL DISABILITY INSURANCE AGENCY

Tribunal Number:                2023/5356

Tribunal:General Member Gooch  

Place:Adelaide 

Date:27 October 2025

Decision:

The Tribunal sets aside the decision under review dated 26 April 2023 and pursuant to section 105(c)(i) of the Administrative Review Tribunal Act 2024 in substitution decides the Applicant meets the disability requirements in section 24 of the National Disability Insurance Act 2013 and consequently meets the access criteria in section 21 of that Act.

Statement made on 27 October 2025 at 1:28pm

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – reviewable decision of Chief Executive Officer – becoming a participant- access request- whether applicant meets the access criteria – whether applicant has an autism diagnosis – List A and B conditions - whether applicant meets the disability requirement – whether applicant has impairments which are, or likely to be permanent – whether impairment or impairments result in substantially reduced functional capacity – whether likely to require supports under the NDIS for his lifetime – decision set aside – disability and access requirements met

Legislation

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16, item 24.

National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 18, 20, 21, 22, 23, 24, 25, 27, 209

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 Items 14, 126 and 138 of Schedule 1

National Disability Insurance Scheme (Becoming a Participant) Rules 2013 (Cth);  rr 5.4, 5.8

Cases

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

Davis v National Disability Insurance Agency  [2022] FCA 1002

Foster and National Disability Insurance Agency [2025] ARTA 718

Madelaine and the National Disability Insurance Agency [2020] AATA 4025

Mulligan v National Disability Insurance Agency [2015] FCA 544

National Disability Insurance Agency v Foster [2023] FCAFC 11

National Disability Insurance Agency v Lampard [2025] FCAFC 139

Secondary Materials

Productivity Commission Report, Disability Care and Support

Applying to the NDIS Guideline and Appendices dated 10 December 2024

1. This is a review of a decision by a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Agency) to reject an application by Mr Boyd to access the National Disability Insurance Scheme (the Scheme).

2. Mr Boyd is a 21-year-old man living with his mother and a younger brother. His younger brother is a current participant in the Scheme having gained access due to impairments attributable to autism spectrum disorder - level 3. 

3. Mr Boyd originally applied for access to the Scheme in 2022 on the basis of impairments to which psychosocial disabilities are attributable arising from a range of diagnoses, including social phobia/anxiety, moderate depression, obsessive compulsive disorder (OCD), Tourette’s syndrome, emotional regulation issues, attention deficit hyperactivity disorder (ADHD) and pollakiuria.[1]

   [1] Page 69 of Exhibit 1

4. On 24 January 2023 a delegate of the CEO decided Mr Boyd did not meet the access requirements in subsection 21(1)(c) of the National Disability Insurance Scheme Act 2013 (the NDIS Act).

5. On 6 April 2023 Mr Boyd applied for an internal review of this decision and on 26 April 2023 another delegate of the CEO affirmed the decision (the decision under review).

6. On 24 July 2023 Mr Boyd applied to the Administrative Appeals Tribunal (the AAT) for review of this decision.

7. From 14 October 2024 the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be applications for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.[2] This decision and statement of reasons is made by the Tribunal.

   [2] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16, item 24

8. A hearing was held over three days on 28-29 August and 2 September 2025 and was conducted by MS Teams video conference. 

9. At the hearing the applicant did not have legal representation but was supported by Mr Saade from the family’s support work provider.  The Agency was represented by Mr Hay of Counsel instructed by Moray and Agnew Lawyers.

10. Documents considered included:

    a.Joint tender hearing Bundle – Exhibit 1

    b.Statement of Ali Mohamad – Exhibit 2

11. The Tribunal heard oral evidence from:

    ·Mr Boyd, the applicant

    ·Ms Boyd, his mother

    ·Mr Mohummad, support worker

    ·Mr Felix Ip, Occupational therapist,

    ·Mr Martin Exell, Clinical psychologist and

    ·Dr Mandy Vidovich, Neuropsychologist.

12. For the reasons set out below the Tribunal sets aside the decision and substitutes it with a decision the applicant meets the access requirements in section 21 of the NDIS Act.

The legislative framework

1. The development of the Scheme proceeded on the basis of a report of the Productivity Commission inquiry into disability care and support in Australia.[3]

   [3] Productivity Commission Report, Disability Care and Support

2. In instituting the recommendations from the Productivity Commission’s report, parliament sought to provide a Scheme which recognised the rights of persons with a disability to self-determination, dignity and the opportunity to live independently as fully participating citizens. This goal was to be balanced by the need to maintain the financial sustainability of the Scheme.[4]

   [4] Ss 3 and 4 of the NDIS Act.

3. The NDIS Act provided for the Agency whose role was to manage the Scheme and to:

   a.Provide general services in the form of co-ordination, strategic or referral services or activities for people with a disability generally;[5]

   b.Provide funding for persons or entities to enable them to assist people with a disability generally by way of information, building community capacity or by helping people to participate in economic or social life;[6]

   c.Assist in developing the disability sector by facilitating innovation, research and best practice standards and to assist in building community awareness about disabilities;[7] and

   d.Create individual plans providing funding for reasonable and necessary supports for those persons who meet the access criteria to become full participants in the Scheme.[8]

   [5] S13 of NDIS Act

   [6] S14 of NDIS Act

   [7] S8 of the NDIS Act

   [8] Section 18 of the NDIS Act

4. The Scheme was not intended to provide individualised plans and reasonable and necessary supports to all persons with a disability. Instead, prospective participants must make an access request. Only if the CEO considered the prospective participant met the access requirements in sections 21 to 25 of the NDIS Act, would they become a Scheme participant.

5. The statutory provisions relevant to this review are:

   a.the National Disability Insurance Scheme Act 2013 (‘the NDIS Act’) (as in place prior to 3 October 2024); and

   b.the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (the Access Rules) made under Sections 27 and 209 of the NDIS Act for the purposes of section 24 and 25 of the NDIS Act.

6. The Agency also issues Operational Guidelines to assist staff in the administration of the NDIS Act. These are policy documents without legislative force. The guidelines relevant to this review are the NDIS- Applying to the NDIS Guidelines (‘the Access Guidelines’). 

7. The Tribunal is not bound to follow the Access Guidelines and will not do so where they are inconsistent with the NDIS Act.

8. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2)[9]  Brennan J held that a Tribunal should take into account relevant government policy where it is not inconsistent with the provisions or objects of the legislation and does not lead to an unjust decision in the circumstances of a particular case.  Therefore, to the extent that they are relevant to this review and not inconsistent with the legislation, the Tribunal will have regard to the Access Guidelines.

   [9] (1979) 2 ALD 634

9. With the passage of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 amendments were made to the NDIS Act, including to sections 24 and 25 of the NDIS Act which address access issues.  This amending act commenced on 3 October 2024 and included transitional provisions applying to matters already on foot. Item 126 of Schedule 1 provided that amendments made to sections 24 and 25 of the NDIS Act only apply to applications made after 3 October 2024.

10. As Mr Boyd’s application was made before 3 October 2024 the amendments will not apply to this application.

11. Subitem 126(3) also provides that the Access Rules as in force prior to the amendments will continue to apply to this application.

Tribunal’s jurisdiction

1. A decision that a person does not meet the access criteria is a reviewable decision.[10]

   [10] Item 1 of s99 of the NDIS Act

2. I am satisfied Mr Boyd made a request to the Agency for internal review within time.[11]

   [11]  Page 10 of Exhibit 1

3. An internal review was conducted by a different delegate of the CEO and the original decision was affirmed.  Section 103(1) provides that an application may be made to the Tribunal for review of an internally reviewed, reviewable decision of the CEO. 

4. An application to the Tribunal on behalf of Mr Boyd was made on 24 July 2023.[12]

   [12] Page 1 of Exhibit 1

5. I am satisfied the Tribunal has jurisdiction to review this decision.[13]

   [13] Section 12 of the ART Act

Access request

1. Once a person makes an access request to the Agency, the NDIS Act provides that the CEO (or their delegate) must decide whether or not the applicant meets the access criteria.[14]

   [14] Sections 18 and 20 NDIS Act.

2. Section 21 of the NDIS Act provides that a person meets the access criteria if:

   ·The person meets the age requirements set out in section 22 (ie that they were aged under 65 years of age at the time of application)[15];

   ·The person meets the residence requirements set out in section 23 (eg. that at the time of consideration, the person was a resident of Australia holding citizenship, a permanent visa or protected special category visa)[16]; and

   ·The person meets the ‘disability requirements’, the ‘early intervention requirements’ or both.[17]

   [15] Section 22 NDIS Act

   [16] Section 23 NDIS Act

   [17] Sections 24 and 25 (respectively) NDIS Act

3. Sections 24 and 25 of the NDIS Act (respectively) set out the disability requirements and early intervention requirements that must be met.

S24 - The Disability Requirements

1. As the amendments to access criteria made on 3 October 2024 only apply to applications made after that date[18] the relevant wording of Section 24 is as follows:

   [18] Item 126 of Schedule 1 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024

   (1)A person meets the disability requirements if:

   (a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and

   (b)the impairment or impairments are, or are likely to be, permanent; and

   (c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

   (i)communication;

   (ii)social interaction;

   (iii)learning;

   (iv)mobility;

   (v)self‑care;

   (vi)self‑management; and

   (d)the impairment or impairments affect the person’s capacity for social or economic participation; and

   (e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.

   (2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

   (3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.

   (4)   Subsection (3) does not limit subsection (2).

2. The requirements of section 24 of the NDIS Act are cumulative such that all criteria must be met before the person can be said to meet the disability requirements.

S25 - The Early Intervention Requirements

1. Section 25 deals with access to the scheme on the basis of the ‘early intervention requirements’ as follows:

   (1) A person meets the early intervention requirements if:

   (a)the person:

   (i)has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

   (ii)has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or

   (iii)is a child who has developmental delay; and

   (b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and

   (c)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

   (i)mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or

   (ii)preventing the deterioration of such functional capacity; or

   (iii)improving such functional capacity; or

   (iv)strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.

   Note:In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

   (1A)For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.

   (2)The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme Access Rules for the purposes of this subsection.

   (3)Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:

   (a)as part of a universal service obligation; or

   (b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

2. The Access Guidelines provide for streamlined decision making with respect to certain identified conditions (the List A & B conditions). These include acceptance that ASD at Level 2 or 3 would generally be considered to meet the disability requirements without any further investigation, and that ‘pervasive developmental disorders not meeting severity criteria in List A or List C’, such as autism or Aspergers (nomenclature no longer relied on by the DSM-5), would be likely to result in permanent impairment.  I am satisfied that these guidelines reflect the intention of the Act and ought to be applied.

3. The Access Rules set out further matters to be considered in determining when an impairment might be permanent and in deciding the significance of any reduction in functional capacity.   I will discuss those later.

The decision under review

1. In the period since Mr Boyd first submitted his application, he had received a new diagnosis of autism spectrum disorder level 2 from Mr Martin Excell, clinical psychologist.[19] Autism spectrum disorder, level 2, is a List A medical condition which the Access Guidelines state is likely to meet the disability requirements.[20]

   [19] Page 381-390 of Exhibit 1

   [20] Page 263 of Exhibit 1;  Applying to the NDIS Guideline – Appendices dated 10 December 2024 page 32

2. In its Statement of Facts, Issues and Contentions (SFIC) dated 22 August 2025, the Agency states that on 30 April 2024 and 20 May 2024 the applicant advised the Tribunal that it was his intention to rely solely on this ASD 2 diagnosis in his bid for access to the Scheme.[21]  Evidence with respect to this intention was not formally put before the Tribunal. It appears likely these statements had been made during the Tribunal’s ADR processes.

   [21] Page 293 of Exhibit 1 at [10]

3. In their opening statement to the Tribunal it was the Agency’s contention that as a result of these statements, and in fairness to the Agency, I am limited in my consideration of this application to whether I accept the ASD 2 diagnosis or not.  In the event that I wish to consider Mr Boyd’s impairments generally, it was put to me that I must re-open the evidence to allow the Agency to address that argument separately.  This position was re-iterated in the Agency’s closing statement.

4. I do not accept this position.  In neither the applicant’s SFIC nor that of the Agency is the access argument framed in that limited manner.  While the emphasis in the evidence presented at hearing may have leaned towards the validity of the ASD diagnoses, both parties, in their written submissions, had discussed the issue of Mr Boyd’s various impairments, the issue of permanency and whether such impairments substantially reduced his capacity for nominated activities.

5. I also have some concern that the statements relied on by the Agency occurred during the Tribunal’s ADR processes and potentially were made in ‘without prejudice’ circumstances.

6. Overall, I do not consider that a statement made by an applicant (without the benefit of legal representation) at one, or even two, points in the progress of this application in any way fetters the Tribunal’s ability, or obligation, to stand in the shoes of the original decision maker and re-make the decision that was before that delegate.  This was an access decision, and that necessarily requires the Tribunal traverse all the issues relevant to that decision. 

7. While neither party bears any formal onus of proof in such a matter, each realistically does bear the practical onus of placing before the Tribunal, or pointing to material before the Tribunal, that can persuade it of that party’s position.[22]

   [22] Foster and National Disability Insurance Agency [2025] ARTA 718 (Foster 2) [21]

8. The Agency is a well-resourced and experienced participant in NDIS hearings at the Tribunal. Their written submissions to the Tribunal covered all the aspects of an access decision. If they are unhappy with the presentation of their case that is a matter for them and not an issue about which they have been constrained by the Tribunal. 

9. As the Agency’s SFIC addresses all aspects of an access decision I do not consider it a failure of procedural fairness for the Tribunal to do the same.

The Agency’s contentions

1. There is no dispute that Mr Boyd meets the age and residence requirements in sections 21(1)(a) and (b) of the Act. The Tribunal accepts and makes a finding that those criteria are met.

2. It is the criteria in section 21(1)(c) of the Act, the disability requirements in section 24 and the early intervention requirements in section 25, that remain in dispute.

Impairment – Section 24(1)(a)

1. In their SFIC the Agency concedes the applicant meets the criteria in section 24(1)(a) of the Act with respect to ADHD, Tourette’s Syndrome, OCD, Mixed Anxiety and Depressive Disorder, Adjustment Disorder, Social Phobia and Substance Use Disorder. The Agency contends these conditions result in neurological impairment and psychosocial disability.[23]

   [23] Agency SFIC page 296 of Exhibit 1 [33]

2. The Agency does not accept a diagnosis of ASD or that there are any impairments arising from this condition.[24]  In reaching this conclusion they rely on the expert report of Dr Mandy Vidovich who provided a critique of the three ASD assessments on record.

Permanency – section 24(1)(b)

[24] Agency SFIC page 297 of Exhibit 1 [42]

1. The Agency contends the evidence does not support a finding Mr Boyd’s impairments are permanent, particularly in light of his persistent substance abuse which they argue has not yet been subject to optimal treatment.[25]

   [25] Agency SFIC pages 298-301 of Exhibit 1

2. They also point to reports which consider Mr Boyd’s ADHD is currently untreated[26] and to recent referrals to mental health services which suggest alternative treatments are available which may be of assistance in addressing Mr Boyd’s psychosocial disability.[27]

   [26] Agency SFIC page 300 of Exhibit 1 [61]

   [27] Agency SFIC page 301 of Exhibit 1 [65]

3. As such, the Agency’s position on Mr Boyd’s impairments is that the Tribunal cannot be satisfied that there are no known, appropriate and available conditions which might remedy any impairment experienced by Mr Boyd. If that is accepted, his impairments cannot be said to be permanent as required by section 24(1)(b) of the Act[28].

Substantial reduction in functional capacity – section 24(1)(c)

[28] Agency SFIC page 301 of Exhibit 1 [66]

1. The Agency raises concerns that the most recent functional capacity assessment was undertaken at a time Mr Boyd was attending alcohol and drug treatment following detox.[29]

   [29] Agency SFIC page 303 of Exhibit 1 [77]

2. The Agency also raised concerns that both functional capacity assessments on file largely relied on self-reported difficulties in function and did not record the results of objective clinical tests or observation.[30]

   [30] Agency SFIC page 303-304 of Exhibit 1 [78]-[80]

3. Overall, the Agency contended the evidence before the Tribunal supported a finding Mr Boyd had the capacity to participate effectively and without assistance in all the relevant activities of communication, social interaction, learning, self-care and self-management. The Tribunal accepts there is no assertion on the part of Mr Boyd that his mobility is impaired.[31]

Impact on social and economic participation – section 24(1)(d)

[31] Agency SFIC page 304 of Exhibit 1 [83] - [84]

1. The Agency concedes that should the Tribunal be satisfied Mr Boyd’s impairments are permanent, those impairments do affect his ability to work, study and socialise.[32] This is something of a contradiction in light of the assertion made above.

Requirement for lifelong support under the NDIS – section 24(1)(e)

[32] Agency SFIC page 308 of Exhibit 1 [111]

1. The Agency’s position is that Mr Boyd is able to access all the support that he requires through mainstream health services. As a result they argue the Tribunal cannot be satisfied Mr Boyd required supports from the NDIS for his lifetime.[33]

Early Intervention Requirements – section 25

[33] Agency SFIC page 308 of Exhibit 1 [114]

1. The Agency’s position is that the early intervention requirements cannot be met while Mr Boyd’s impairments cannot be considered to be permanent.[34] 

   [34] Agency SFIC page 308 of exhibit 1 [115]

2. The Agency concedes that if the Tribunal accepts the permanency of Mr Boyd’s impairments, however, early intervention services are likely to benefit Mr Boyd by reducing his likely need for supports in the future.[35]

   [35] Agency SFIC page 309 of Exhibit 1 [117]

3. However, it is the Agency’s position that Mr Boyd cannot succeed in relation to early intervention requirements as the supports he requires are not most appropriately funded through the NDIS, as required by section 25(3) of the Act, but through the mainstream health system instead.[36]

   [36] Agency SFIC page 309 of Exhibit 1 [118]

4. The Agency therefore submits the Tribunal should affirm the decision under review.

The Applicant’s Contentions

1. Mr Boyd’s submissions are that based on impairments arising from his multiple diagnoses he meets the access requirements under the Act. The conditions relied on are ASD level 2, ADHD, Tourette’s syndrome, OCD, mixed anxiety and depressive disorder, adjustment disorder and social phobia.[37] Substance use is described as a symptom of his disability.[38]

   [37] Applicant’s SFIC page 288 of Exhibit 1 [1.1] – [1.8], [3.1]

   [38] Applicant’s SFIC page 291 of Exhibit 1 [3.4]

2. Mr Boyd contends that his impairments are permanent and lifelong and result in severe to extreme deficits in communication, daily living, socialisation and emotional regulation.[39]

   [39] Applicant’s SFIC page 291 [1.7] and [3.3]

3. Mr Boyd is said to require supports from the NDIS to:

   a.Develop independent living skills;

   b.Regulate emotions and social interactions;

   c.Access education and employment pathways; and

   d.Engage safely and meaningfully in the community.

Consideration

1. The issue before the Tribunal is whether Mr Boyd meets either the disability requirements in section 24 of the Act, or the early intervention requirements in section 25 of the Act in relation to his impairments.

2. Given the primary dispute around whether ASD is a relevant condition, the Tribunal will set out in some detail the evidence placed before it.

The evidence at hearing

1. Both Mr Boyd and his mother attended the hearing and gave evidence under affirmation.  I consider that both gave evidence in a frank and forthright manner.

Mr Boyd

1. Mr Boyd’s evidence was given in response to questions put to him firstly by Mr Saade and then by Mr Hay.

2. While Mr Boyd responded to questions appropriately, his manner of speech was slow and he appeared to frequently lose his train of thought mid response. This was particularly so when he was asked to answer multiple part questions or to describe his emotional response to a circumstance (such as the circumstance of his guardianship).  Mr Boyd also appeared to have difficulty in finding the right word on occasion.  On occasion he repeated a question and was observed to lose his train of thought and ask for the question to be repeated. His facial expression was minimal and at various time he was observed to be rocking or jiggling his legs.

3. It was Mr Boyd’s evidence to the Tribunal that he had recently been placed under a Guardianship Order by the State Administration Tribunal (SAT).  He stated he had mixed feelings about this even though he knew he ‘didn’t have what it takes to become independent’.  (I have considered the SAT order and it is clear that Mr Boyd is subject to both a guardianship order (limited to decisions about residence, health and services) and an administration order for the whole of his estate.)[40]  Mr Boyd advised the Tribunal that he did not manage his finances well as he made impulsive purchases and had been taken advantage of by other people on occasion.

   [40] Pages 472 and 473 of Exhibit 1

4. At one point Mr Boyd stated the questions were too much for him and that he ‘definitely can’t find the words for how I feel’. He indicated he gets ‘overwhelmed’ in situations where he had to speak in front of others, such as the hearing. Overwhelmed for Mr Boyd meant there was ‘too much going on’ and he becomes fatigued

5. Mr Boyd indicated that he often misunderstands jokes and thinks people are being serious when they are not.  He gave an example of a friend calling him ‘the Man’ in a gaming context and him not being sure if that was a passive aggressive joke or whether his friend thought he really was ‘the Man’.

6. Mr Boyd’s evidence was that if he became overwhelmed he might ‘explode’. He stated he felt anxious in social settings and that he felt ‘his words can’t leave his mouth’.  His evidence was that he could not read other people’s body language.  As a result he preferred to stay home alone.

7. In terms of learning, Mr Boyd’s evidence was that he needed instructions repeated several times and that as he was a visual learner he would do better if something was demonstrated for him.

8. In response to a question by Mr Saade about Mr Boyd’s experience at Murdoch University, Mr Boyd initially could not remember if he had had ‘an education assistant’. When the question was rephrased as ‘someone like myself or Ali helping you get through your studies’, Mr Boyd recalled that in fact he had had that help. He stated that despite the help, and having had a learning plan, he did not do well.

9. It was Mr Boyd’s evidence to the Tribunal that if he is given three instructions, he might complete the first part, but then he would forget the rest. He stated that he frequently got halfway through a task and then forgot the rest.  He stated he could not manage his own appointments and would forget them if his mum did not remind him.  Mr Boyd felt that at 21 years of age he was expected to be a ‘functioning adult’ and be able to manage his own financial decisions and appointments, but he could not.  He admitted he simply did not plan daily activities at all.

10. Mr Boyd was asked to give an example of a situation in which he had exploded due to overwhelm.  Although he identified a circumstance in his mind, he eventually felt it was too personal and private to share. 

11. He did go on to talk about a situation when he had been feeling so despondent about being ‘stuck in a situation where [his mum] was going to control him for the rest of his life’ (even though he acknowledged he needed it) that he took a knife and threatened to cut his wrists.

12. Mr Boyd gave evidence of having used Xanax, marijuana, alcohol and dexamphetamine to calm himself.

13. Mr Boyd expressed anxiety about his future when his mum might no longer be able to support him.

14. In response to Mr Hay’s questions Mr Boyd spoke about having been bullied in school because he was different and having had difficulty with study and exams.  He spoke about liking music because it interested him and wasn’t an academic subject. He indicated he had been ‘talented at piano’ and expressed an interest in getting back to doing music and perhaps creating software so he could create ‘his own beats’.

15. Considering friendships at school Mr Boyd indicated that he did not have many friends at school and was always socially very awkward. He stated that he did not ‘hang around with’ others, but rather simply ‘hung around them’.  When he tried to start conversations, he would be bullied because he would say something stupid.

16. It was Mr Boyd’s belief that the few friends he ever did make also had autism. Their social interactions were largely based around playing PlayStation where they did not talk much with each other.

17. Mr Boyd spoke about having gained employment at La Pagnotta, a bakery/pizza place where he was employed to package pizzas, making boxes for these.  He spoke about being too slow, losing his concentration mid-task and having lost his job as a result.

18. When asked about future employment Mr Boyd identified being interested in fashion but thought he would work in ‘anything to make a quick buck that did not require too much speed or concentration.’  Mr Boyd agreed that something to do with computers would stimulate his brain and that he used to do computer programming at school and would like to get back into it.  However, Mr Boyd felt that he got too distracted to do this and that he became more fatigued than others.  He did not think he could manage anything but part-time work.

19. In terms of receiving instructions about work, Mr Boyd agreed with Mr Hay that having pictorial instructions might help him.

20. In relation to public transport Mr Boyd agreed that he could catch a bus but that he had problems with navigation and had previously become lost. He did not think that planning beforehand would assist him because he was ‘terrible at planning’.  He felt he would need his mum to constantly remind him what to do.

21. Mr Boyd discussed his Murdoch University experience, advising his goal was to study a degree in cybersecurity and forensics but he was unable to. He was enrolled in a course but was unable to manage the exams necessary to continue.

22. In relation to substance use Mr Boyd confirmed his previous use of cannabis, Xanax, dexamphetamine and alcohol.  His cannabis use was monthly, his Xanax use was via illicit pathways (not prescription) where he would access 5 – 20 2mg tablets once a month to once every two months.  In purchasing Xanax he would request the dealer (by text message) to deliver the tablets to his home due to his difficulties with public transport.  On occasion he would get into trouble with these dealers as he would forget to have cash available at delivery.

23. Mr Boyd advised he was not prescribed Xanax because of his illicit use of this drug.  He had been prescribed diazepam and clonazepam previously.

24. In relation to alcohol use Mr Boyd advised that he did not drink on a daily basis but that when he did drink, he would drink to excess, until he passed out or vomited.

25. Mr Boyd advised that he was no longer prescribed dexamphetamine because of his inappropriate use of this.  He had not had this for 8-9 months. (This appears to be in contrast to Dr Ntsowe’s evidence that Mr Boyd needed toxification in May/June 2025.)  Dexamphetamine was too difficult to access on the illicit market and as his mother now controls his money he would not have the opportunity to do so.

26. In relation to opiate use Mr Boyd’s evidence was that he had only ever taken them once or twice and had accessed them through illicit sources. 

27. He stated that he had been sober for two months at the date of hearing.

28. He is currently prescribed Sertraline and Brexypiprazole.

29. Mr Boyd agreed that he would like to meet people but stated that he is socially awkward and doesn’t know how to communicate with them. He enjoys playing online video games and has some contact with random other people who are also playing the same games online.  He does not chat with those people unless it relates to the game.

30. Mr Boyd’s evidence was that he has no access to his money or his phone or bank account as his mum manages all those things. In the past he had sold items and utilised his computer to arrange drug drop offs.

31. Mr Boyd advised that his home routine was limited and his mum regularly reminded him of things he needed to do.  He stated his mum ‘forced him’ to do everything as otherwise he would not do it. He did not know how to cook and had trouble with some food textures such as fat or squishy things.  Preparing cereal is stressful for him due to the decision about when to put the milk in, and he has been told not to make toast on his own due to ‘tampering’ with the settings and burning the toast.

32. In relation to a time when he has ‘exploded’, Mr Boyd states that he has broken numerous things in the house, including a door and some windows. He stated this may happen in the community in the same way as it does at home because he is unable to control himself.

33. Mr Boyd identified speech therapy and support workers (to accompany him into the community and to teach him independence skills) as NDIS services he believes would assist him. He felt his speech was inappropriate due to the number of pauses he makes while talking. He felt that he ordinarily swore too much.

Ms Boyd’s evidence

1. Ms Boyd’s evidence was given over a number of sessions under affirmation.  It was given in a frank and forthright manner from a strong perspective that Mr Boyd’s ASD level 2 diagnosis was correct.

2. It was Ms Boyd’s evidence to the Tribunal that she did not know about autism when Mr Boyd was young and that as he was her first child she did not have any basis for comparison for his behaviours.

3. She recalls that as a toddler Mr Boyd used to walk on his tip toes and was very fussy about food textures.  She recalled that until he was 4 he refused to eat anything other than bread, cheese or fruit.  Mr Boyd was not a cuddly child and would push away attempts at hugging. When confronted by multiple other children at a playground she recalled he would back away rather than wait in line for a turn. 

4. Ms Boyd stated that problems increased once Mr Boyd started school, with teachers complaining that he would not comply with instructions and would not sit and do anything unless he was given one-on-one support.  This was a problem for the whole of his school life.  Ms Boyd’s evidence was that Mr Boyd would never have gained his Year 12 certificate if she had not engaged tutors or herself to do the work with and for him.

5. Mr Boyd had constant social issues at school, misunderstanding social situations, getting into fights and being bullied. Mr Boyd changed schools on several occasions seeking a better situation.  On some occasions Mr Boyd made connections with people who simply wanted to take advantage of him, tricking him into signing telephone contracts for multiple phones, or making him buy jugs of beer for them.

6. Ms Boyd explained that she tried to teach Mr Boyd how to watch, learn and try to act like other people.  It sometimes worked initially, but once the ‘mask’ slipped he would lose friends.

7. Ms Boyd explained that schools often suggested she should have Mr Boyd assessed for autism.  She stated that she resisted this to start with because her younger son had been diagnosed with ASD level 3 and she thought Mr Boyd’s presentation did not match her younger son’s.  She stated there was also a part of her that desperately wanted Mr Boyd to be okay.

8. Ms Boyd stated she was ‘doing all the work, trying to push him through life’ to just try to make it ‘normal’.  She stated that Mr Boyd is intelligent and she thought she could make life work for him. She did not realise that autism is a spectrum and that not all people will present in the same way.

9. Considering speech oddities Ms Boyd recalled that when he was young Mr Boyd used to refer to himself as ‘you’ and narrate his feelings, for example, ‘you don’t want old lady’. He also rarely responded to his own name. This non-responsiveness persists to today. Ms Boyd also notes that Mr Boyd will forget details about incidents and make things up to cover his uncertainty.  For this reason she feels she must check the truth of everything he says and cannot rely on him to manage his own appointments.  Under stress Mr Boyd may scream and swear.  If told an outright and obvious lie she felt he is likely to believe it.

10. Ms Boyd recalled that Mr Boyd has always had obsessions that he would be focussed on and want to talk about. She recalled that he would get stuck on one topic and only want to talk about that thing.  As a child he was obsessed by guitar and would constantly wear it.  Then he became obsessed with Spiderman for a few years before moving to backflips, hacking and IT, and then anime.

11. Discussing transitions from one activity to another Ms Boyd recalled that Mr Boyd had always had difficulty when things did not go the way he expected them to.  When that happened Ms Boyd recalled Mr Boyd having ‘meltdowns’.

12. Ms Boyd recalled Mr Boyd as a child mostly playing by himself, not with others, and she felt that those Mr Boyd did make friends with were likely to be different themselves, either autistic or ‘troubled’.  She spoke about the incident where university friends took advantage of him by getting him to sign three contracts in his name for new phones and then taking the phones to sell.  Mr Boyd ended with a debt of $10,000 as a result which Ms Boyd has had to deal with via the police and negotiations with Telstra.  It was after this that she realised he required guardianship orders.

1. Academically Mr Boyd struggled. It was Ms Boyd’s memory that Mr Boyd had problems from his first day.  He would constantly be in trouble or in detention or suspended.  It was Ms Boyd’s impression that he simply did not understand social situations and would get upset, and overreact, screaming and acting out. Ms Boyd recalls that schools would regularly suggest Mr Boyd be assessed for ASD, but as she did not want that diagnosis she did not pursue it. Ms Boyd was constantly getting emails from the schools about Mr Boyd’s behaviours. His best grade was a C but mostly he received Ds and Es because he simply would not work independently.   He always required someone to sit with him, but then he was teased for this.

2. He had his nose broken against a desk in a fight at highschool on one occasion. He frequently got into fights at school.

3. In relation to Mr Boyd’s ability to look after himself, Ms Boyd’s evidence was that Mr Boyd requires prompting for everything he is supposed to do.  If someone does not continue to remind, prompt and supervise him Mr Boyd will not complete his normal hygiene activities such as cleaning his teeth and showering.  Ms Boyd stated that she had tried leaving Mr Boyd visual reminders in the house, but that Mr Boyd would simply not remember to read them.  If she does not check every 5 minutes, Mr Boyd may simply forget what it is he is supposed to be doing.

4. Mr Boyd does not cook.  On one occasion he tried to heat up a frozen pizza but forgot to remove the plastic wrap before putting it in the oven. He cannot be relied on to turn off appliances or lock the doors to the house.

5. Mr Boyd started driving lessons but was unable to manage thinking of multiple things.  He was so unsafe the lessons were cancelled.

6. Ms Boyd confirmed that Mr Boyd has had ‘meltdowns’ since he was very young when things do not go his way or if he is anxious. These ‘meltdowns’ have resulted in broken furniture, a hole in a door and him punching himself in the head.  He is unable to regulate his emotions when they are overwhelming.  If he is only a bit anxious he may be able to calm himself by rocking or by talking to himself.  Self-harm behaviours have been observed at times of stress, such as trying to cut himself with a knife, or punching his own head.

7. Ms Boyd states Mr Boyd is unable to plan or understand consequences.  He lives entirely in the present and is unable to think about the impact of his actions.  He has boarded the wrong train a number of times, needing to call Ms Boyd to help him get home. It was Ms Boyd’s opinion that Mr Boyd would be unable to function if she were not there.  She expressed fear about what would happen to him if she were no longer around.

8. Ms Boyd has tried to obtain services to support Mr Boyd, paying privately for support workers on occasion, paying for occupational therapy, tutors and private psychiatrists.  She states she has tried to enrol Mr Boyd in a community mental health service but was denied access because of Mr Boyd’s autism diagnosis.  Other services, such as Headspace, had rejected Mr Boyd because of his behaviours.

9. Asked about why Ms Boyd took Mr Boyd to Dr Exell for assessment, Ms Boyd advised Dr Exell was the practitioner who diagnosed her younger son with autism when that son was three. She had faith in him.

10. In relation to Mr Boyd’s drug use, Ms Boyd states she was shocked to find out about it.  Mr Boyd had been stealing medication from her room and became addicted to his dexamphetamine. He had also taken his younger brother’s medication. Mr Boyd said they helped him to sleep. Mr Boyd then started using other substances, looking for other things to calm him.  Ms Boyd says the dexamphetamine now have an opposite effect on Mr Boyd, making him aggressive instead of calming him. Mr Boyd was admitted for rehabilitation, but he could not cope there because he could not manage the social interaction required.  He was discharged early after a dispute with another patient. Ms Boyd took him to a psychiatrist, and he is now on proper medication to manage his anxiety. 

11. Under cross examination Ms Boyd confirmed that she must prompt Mr Boyd to do all his activities or he will forget.  He has to be reminded step by step how to complete a task.  Ms Boyd stated she has left written instructions in the bathroom for Mr Boyd but he does not pay attention to them.  It was Ms Boyd’s opinion that it was not simply a matter of Mr Boyd choosing not to do the activity.

12. Ms Boyd agreed with the proposition that Mr Boyd was able to learn how to use a mobile phone, noting that she was not claiming he had an intellectual disability, rather that he had executive dysfunction and simply doesn’t or can’t pay attention to things, particularly if they don’t immediately interest him.  Ms Boyd conceded that Mr Boyd was able to learn how to operate a computer, and even how to do coding, but her evidence was that otherwise, if a thing doesn’t interest Mr Boyd, he does not focus on it.

13. Ms Boyd talked about her role as administrator of Mr Boyd’s estate and her reporting to the Public Trustee. There was a further discussion about the household budget and Ms Boyd prioritising occupational therapy assistance, GP review and the ongoing rehabilitation support group.  Ms Boyd was unable to afford ongoing psychological assistance and was of the view OT was of more assistance to Mr Boyd.  A GP mental health care plan only offered limited services and Mr Boyd’s preferred psychologist did not work under such plans.

14. With regards to the rehabilitation admission, Ms Boyd was of the view Mr Boyd was essentially detoxed for a month before he was admitted as she had taken control of his phone and money.  She acknowledged that he left the program early because he was not coping with his anxiety and had had a dispute with another patient. 

15. Ms Boyd discussed the work Mr Ip, Occupational Therapist, was doing with Mr Boyd. She felt Mr Boyd was accepting of Mr Ip and was happy to work with him.  Mr Ip had been seeing Mr Boyd since about January or February of this year, working on engagement and on improved memory and understanding of consequences.   Mr Ip also offers strategies to Ms Boyd about managing Mr Boyd between sessions.

16. Ms Boyd hoped but did not know whether Mr Boyd would improve enough to no longer need assistance.  She felt the length of time he has had problems without the proper assistance meant improvement would likely take some time.  She noted that five years ago, when she started work as an education assistant with special needs children, she was shocked to notice that those children had better skills than Mr Boyd had at that time.

17. Ms Boyd was asked about Mr Boyd’s attendance at university.  She noted he undertook a prep course prior to admission and managed to pass two units with her help and some paid tutors.  He was unable to manage the university course, however, because he was unable to complete exams due to anxiety.  The family applied to the university for special assistance, but the university was unable to offer any way around exams.

18. Asked about Mr Boyd having finished Year 12 it was Ms Boyd’s evidence to the Tribunal that he did little work himself, relying on her and his tutors to get him through.

19. Ms Boyd agreed that she wanted Mr Boyd to be able to study and achieve but that his mental health and panic attacks made that difficult. 

20. It was Ms Boyd’s evidence to the Tribunal that she had been unable to locate any autism groups which did not require NDIS funding in order to attend.  On occasion Ms Boyd had paid the support worker for her other son just to take Mr Boyd out to do outside activities.

21. In answer to a question about contradictory information (about whether Mr Boyd was affectionate as a children) reported by Dr Afchani, paediatrician, Ms Boyd felt that Dr Afchani must have made an error in reporting.

Evidence of Mr Muhammad

1. Mr Muhammad works as an NDIS support worker providing support to Mr Boyd’s younger brother.  He had worked with the family for about three years at the time of the hearing. His work would include 4-5 shifts a week for 5 to 6 hours a shift. 

2. Mr Muhammad’s evidence is that he had known Mr Boyd and observed Mr Boyd for the whole of the time he had been supporting the younger brother. Once or twice a fortnight Mr Muhammad would provide support for Mr Boyd as well.

3. Mr Muhammad’s evidence was that many of his other NDIS clients either had ASD or other neurodevelopmental conditions.  His opinion was that Mr Boyd displayed similar behaviours.

4. Mr Muhammad’s observations were that:

   a.Mr Boyd appeared to have severe social anxiety and missed social cues often;

   b.Mr Boyd had to be reminded about basic things, such as drinking water, taking medication and showering and needed someone to make sure he actually completed tasks.  He frequently forgot instructions. Mr Muhammad had found that a list helped Mr Boyd but noted that he needed to remind Mr Boyd to refer to the list;

   c.Mr Boyd often paced up and down and with any sort of change will appear to have a panic attack.

   d.Mr Boyd asked the same thing over and over and did not understand jokes;

   e.Mr Muhammad had observed Mr Boyd frequently pacing, leg shaking, making no eye contact and not responding to others.

   f.He has been in the home when Mr Boyd has attempted to take his own life and to self-harm;

   g.It was Mr Muhammad’s opinion Mr Boyd would be unable to manage his daily life without his mother’s assistance.

5. On cross examination Mr Muhammad advised he had completed a TAFE qualification in personal support in disability and age care in 2020.  Prior to that he worked as a trades assistant, a baggage handler and in retail.

6. He confirmed he had worked directly with Mr Boyd once to twice a fortnight for about three years.

7. Mr Muhammad was aware of Mr Boyd’s ASD and ADHD diagnoses but was not aware of any other diagnoses.  He said he would be unable to tell which condition caused which behaviour.

8. Mr Muhammad confirmed that the written statement he prepared (Exhibit 2) had been prepared by him with the assistance of his employer, Mr Saade.

The medical evidence

1. The Tribunal was provided with historical medical reports relating to Mr Boyd.

2. Report of Caroline Roger, Speech therapist, dated 13 May 2010[41] indicated that Mr Boyd (aged 6 years, 3 months) presented with both expressive and receptive language difficulties.  His skills were noted to be variable across different skills, and particularly it was noted that his ability to formulate sentences was stronger than his ‘understanding of the utterances of others’.  Ms Rogers thought this could be misinterpreted as defiance, rather than comprehension difficulty, in the classroom. He was noted to need a high degree of support to follow directions, to have difficulty in changing the focus of his attention, difficulty in responding to the needs of others and difficulty in managing more than one-step directions.

   [41] Pages 119-122 of Exhibit 1

3. An open letter from Dr Peter Rowe, Paediatric Neurologist, Statement Child Development Centre, dated 2 February 2015[42] advised that Mr Boyd (10 years and 10 Months old) had been assessed and diagnosed with:

   a.ADHD-Predominantly Inattentive Presentation;

   b.Generalised Anxiety Disorder;

   c.Separation Anxiety Disorder;

   d.Social Anxiety Disorder (Social Phobia); and

   e.With features of Obsessive-Compulsive Disorder.

   [42] Page 121 of Exhibit 1

4. A letter by Dr Yulia Furlong, psychiatrist, dated 8 February 2020[43] in support of funding for ongoing treatment of Mr Boyd, recorded her diagnosis as including mixed anxiety and depressive disorder, obsessive-compulsive disorder, mixed obsessional thoughts and acts, ADHD and vocal and multiple motor tic disorder.

   [43] Page 123 of Exhibit 1

5. Multiple reports have been provided from Mr Boyd’s long-term paediatrician. The earliest of these reports is dated from an assessment on 12 August 2016.  Mr Boyd was 12 years old at the time. The context of the report appears to be a request from Mr Boyd’s school for a diagnosis and some guidance for management of Mr Boyd in the school setting.  It is not clear whether Dr Afchani had seen Mr Boyd at an earlier date but there is mention of an earlier trial of Strattera medication and private psychological assistance. That medication was ceased due to reported increase in moodiness.

6. Dr Afchani provided a diagnosis of ADHD and of emotional regulation difficulties.  Dr Afchani planned to refer Mr Boyd to a child and adolescent mental health service.[44]

   [44] Page 314 of Exhibit 1

7. A subsequent report dated 21 April 2017 noted that a trial of Ritalin was of limited benefit to Mr Boyd, with increased moodiness and some suicidal ideation. Mr Boyd was 13 years of age at this time.  The working diagnosis was now noted to be anxiety disorder with ‘borderline inattentive ADHD’. Relevant assessment tools were apparently appended to the original report but have not been provided to the Tribunal.[45]  The significance of ‘borderline inattentive ADHD’ is not explained in the report and it is not clear to the Tribunal whether this indicates limited applicability of the ADHD label or whether it suggests overlap with another condition.

   [45] Page 316 of Exhibit 1

8. On 20 July 2018 Dr Afchani noted Mr Boyd’s diagnosis as including anxiety, complex family background, pollakisuria and difficulties with emotional regulation. She identified formal diagnoses as medical disorder, genitourinary/renal (other), behavioural and childhood emotional disorder, unspecified, and attention and concentration disorder, unspecified.[46]

   [46] Pages 317 and 318 of Exhibit 1

9. A subsequent report on 12 October 2018 noted borderline ADHD, anxiety, difficulties with emotional regulation, pollakisuria, LVH on ECG, variable blood pressure. Dr Afchani noted unsuccessful trials of lisdexampthetamine, Ritalin and atomoxetine.  Mr Boyd was on Vesicare for his urinary frequency.  Mr Boyd was commenced on Sertraline. He was 14 years old at this time.[47]

   [47] Page 319 of Exhibit 1

10. A further report dated 22 February 2019 noted that Mr Boyd had had conflict at school, resulting in suspension and that neither his mental health nor his ADHD had improved with medication.[48]

    [48] Page 322 of Exhibit 1

11. On 21 June 2019 Dr Afchani provided a referral which queried the possibility of ASD traits for Mr Boyd. She noted that no medication had been effective, with a trial of guanfacine ceased as not tolerated. Although Ritalin and Lisdexamphetamine had assisted with concentration, Mr Boyd’s emotional regulation had been worsened and he had developed significant urinary frequency.  Fluoxetine and sertraline had produced no benefit.  It is acknowledged that Mr Boyd’s younger brother had ASD and Dr Afchani was now exploring that diagnosis for Mr Boyd.[49]  Mr Boyd was noted to have increased difficulties at a new school with regards to behaviour, emotional regulation, antisocial behaviour, academics and difficulties with concentration.

    [49] Pages 323 and 324 of Exhibit 1

12. A separate report prepared on 21 June 2019 addressed Dr Afchani’s brief consideration of ASD as a diagnosis. In this report Dr Afchani noted that autism criteria were briefly assessed.  She noted that:

    a.criterion A1 (social/emotional reciprocity) needed further exploration;

    b.criterion A2 (nonverbal communication deficits) likely was not met given Mr Boyd used gestures such as pointing, waving and facial expressions (she did not consider his eye contact issues);

    c.criterion A3 (developing, maintaining and understanding relationships) needed further exploration;

    d.criterion B1 (stereotyped or repetitive motor movement, use of objects or speech) was not met as there was no history of motor stereotypes, echolalia or atypical use of speech and language (she did not consider Mr Boyd’s childhood reference to himself as ‘you’ and narration of his thoughts, nor his apparent obsessive thoughts and acts referred to by Dr Furlong);

    e.criterion B2 (insistence on sameness, inflexibility) was likely not met;

    f.criterion B3 (highly restricted fixated interests) needed to be explored further as Mr Boyd had changing special interests

    g.criterion B4 (hyper or hyporeactivity to sensory input or unusual interest in sensory aspect of the environment) was not met as there was no history of sensory difficulties (she did not consider his childhood food issues).

13. Dr Afchani recorded that a school psychologist had reported Mr Boyd had difficulty with peers and social interaction, had avoidant eye contact, was easily distracted, and demonstrated repeated swearing and leg shaking. He was noted to be apathetic and irritated, with limited understanding and insight into his behaviour and presentation and limited understanding of other’s differing emotions and perceptions. The school was noted to be querying the possibility of ASD.

14. Dr Afchani’s report dated 8 November 2019 noted that lisdexamphetamine had been restarted with some benefit with concentration, emotional regulation and organisational skills. Difficulties at school continued.  Mr Boyd had been assessed at Child and Adolescent Mental Health service who were concerned about the possibility of autism.  This is noted to have been a repeated concern expressed by CAMHS.   

15. Dr Afchani requested autism questionnaires be completed by Mrs Boyd and the school and concluded from these that the parental assessment was borderline for self-regulation, peer socialisation, adult socialisation, atypical language and attention, and the school’s response was in the low clinical range for unusual behaviours, self-regulation, atypical language and attention. Mr Boyd was noted to be distressed about the possibility of being diagnosed with ASD.[50]

    [50] Pages 336 and 337 of Exhibit 1

16. A report dated 1 May 2020[51] noted that Mr Boyd (at age 16) had now been diagnosed with obsessive compulsive disorder and post-traumatic stress disorder by Dr Furlong, psychiatrist. He had been commenced on Valdoxan which was reported to have been beneficial in reducing his anxiety. Marijuana use and inappropriate dexamphetamine overuse was noted.  Mr Boyd’s conversation was noted to be better via Telehealth.  

    [51] Pages 339-340 of Exhibit 1

17. On 24 July 2020[52] Mr Boyd was noted to have been expelled from his latest school and to have completed a drug and alcohol residential program. Dexamphetamine had been ceased due to his inappropriate use of it. Mr Boyd was noted to be ambivalent about the idea of an autism assessment.  Dr Afchani felt his current diagnoses was sufficient to explain Mr Boyd’s current presentation.

    [52] Pages 341-343 of Exhibit 1

18. A report dated 29 January 2021[53] confirmed that Mr Boyd had completed an autism assessment which had determined he did not meet the criteria for that diagnosis.  Dr Afchani opined that as stimulant medication had only been borderline helpful they would not be prescribed.  Dr Afchani was of the view Mr Boyd was remarkably improved at this assessment as a result of the Valdoxan. As Mr Boyd was about to be 18 years of age, Dr Afchani advised future prescriptions would need to be made by the GP.

    [53] Pages 344-346 of Exhibit 1

19. An occupational therapy assessment was undertaken by All Round OT on 26 June 2022[54].  The listed diagnoses included ADHD, Combined vocal and motor tic disorder (Tourettes), OCD and social phobia.  The report noted that Mr Boyd was experiencing disturbed sleep patterns, recurrent tics and difficulty with sensory regulation. He is noted to have poor concentration, reduced short term and working memory, difficulty in learning new tasks and difficulty following multi-staged instructions. He is noted to have difficulty regulating emotions when unexpected events occur.  Difficulties with recreational drug and alcohol use were noted.  He continued to take prescribed medications.

    [54] Pages 347-360 of Exhibit 1

20. In terms of function the report noted that Mr Boyd:

    a.Needed significant support on a day-to-day basis due to his assessed care needs;

    b.Would often get on the wrong train;

    c.Had limited social engagement;

    d.Had a history of oral sensitivity to various food textures and very poor appetite;

    e.Required verbal prompting for initiating self care tasks;

    f.And required assistance from Ms Boyd for all domestic care tasks and financial management.

1. The report made recommendations for extensive supports with a view to capacity building.

2. A 20 September 2022 report by Craig Russell, psychologist at Swan Child and Adolescent Mental Health Service, confirmed Mr Boyd had a mental health condition.  Mr Russell stated that ‘William’s situation is quite unique. He doesn’t meet enough criteria for a diagnosis of Child Autism but does seem to have had long term social adaptation challenges and quite fixed interests.  His ADHD related impulsivity and organisational challenges make it difficult for him to study or become work ready without close supervision and support.’  Mr Russell set out the extensive different treatment modalities utilised with Mr Boyd from 2019 to 2022.  He was of the view there were no further treatments likely to remedy Mr Boyd’s impairments.[55]  Mr Russell further noted Mr Boyd could become obsessed over games and internet interests.  Mr Russell described Mr Boyd’s presentation as that of ‘an unusual eighteen-year-old of Russian/Kazakhstan background with significant social anxiety, a preference for staying in his room with the blinds drawn, numerous obsessive interests and compulsions, no friends and suspiciousness of young people he does not know.[56]’

   [55] Page 364 of Exhibit 1

   [56] Page 53 of Exhibit 1

3. A 21 September 2022 report of Dr Lo, GP[57] noted Mr Boyd’s past history of ADHD, Tourette’s disorder, mixed obsessional thoughts, social phobia and depression. Dr Lo opined they have exhausted all treatment options.

   [57] Page 61 of Exhibit 1

4. Dr Yulia Furlong, psychiatrist, provided a report dated 14 November 2023[58] in which she wrote that Mr Boyd had been diagnosed with mixed anxiety and depressive disorder and OCD which she considered were severe and had not improved in the last five years despite multiple comprehensive treatments. She wrote ‘there is a high clinical suspicion that he suffers from undiagnosed ASD and further formal re-assessment of autism diagnostic criteria and neuropsychological testing has been recommended’.  Dr Furlong also recorded the ADHD and combined vocal and multiple motor tic diagnoses which had been subject to ongoing treatment.

   [58] Pages 371-373 of Exhibit 1

5. Letter from Dr Lo, GP dated 6 June 2024[59] lists current diagnoses as ADHD, ASD level 2, anxiety/depression and OCD and overactive bladder.  It appears this letter was written for DSP purposes after the assessment of Mr Exell.  Dr Lo assessed these conditions have an extreme functional impact on Mr Boyd’s brain function.

   [59] Page pages 396-399 of Exhibit 1

6. Functional Capacity and Needs Assessment Report dated 5 March 2025 by Felix Ip, occupational therapist.  Mr Ip conducted standardised assessments including a WHODAS assessment, a Vineland assessment and a Life Skills Profile assessment.  Overall Mr Ip concluded that Mr Boyd had significant functional limitations impacting his independence, particularly in relation to self-care.  His adaptive behaviour scores were significantly below expectations for his age indicating he had profound challenges across all areas of function.  Mr Ip recommended ongoing OT, speech therapy, psychology, positive behaviour support and support work interventions.[60]

   [60] Pages 403-464 of Exhibit 1

7. In his oral evidence Mr Ip confirmed his observations about Mr Boyd’s difficulties based on his weekly work with Mr Boyd since January of this year.  Mr Ip advised that he attends at Mr Boyd’s home to undertake work aimed at improving his executive function.

8. Mr Ip advised he had conducted a Vineland assessment and WHODAS assessment in relation to Mr Boyd and that these had demonstrated significant functional incapacity across a range of areas.

9. Mr Ip noted that his observations of Mr Boyd in practice supported these results, with Mr Boyd having very poor memory or concentration at times and requiring prompting for everyday activities. He noted poor eye-contact and emotional dysregulation as common presentations.

10. On cross examination Mr Ip agreed that the two assessments he had completed were based on self-report and may be vulnerable to someone’s exaggerated reporting or simply reflective of someone having a bad day.  Given his personal observation of Mr Boyd he did not think that was likely in this situation.

11. Psychology report by Mr James Serpesedes, Principal Psychologist Aster Health Group dated 5 May 2025. The purpose of the report was to provide an opinion on patterns of emotional dysregulation, inattentiveness and impulsivity, and pervasive substance abuse.  Information was taken from interviews with Ms Boyd and Mr Boyd.  Mr Serpesedes administered a WHODAS assessment, Autism Spectrum Quotient assessment and a depression/anxiety/stress scale assessment.  Overall he formed the view Mr Boyd’s difficulties were more accurately captured by an ASD and ADHD diagnosis than anxiety and depression.  Clear social deficits were observed, along with intense fixations in specific areas of life which Mr Serpesedes felt were congruent with ASD. Mr Boyd may also meet criteria for a substance use disorder.  Mr Serpesedes stated that there was a complex interaction between neurodiversity and substance use which may be perpetuating Mr Boyd’s patterns of drug use.[61]

    [61] Pages 465-471 of Exhibit 1

12. Report of Dr Andrew Ntsowe, Consultant Psychiatrist, dated 14 July 2025 addressed Mr Boyd’s admission to Abbotsford Private Hospital for detoxification. This was arranged at the request of Dr Furlong as outpatient detoxification had proved difficult.  Dr Ntsowe noted Mr Boyd was found to still suffer from benzodiazepine withdrawal symptoms on admission, though not on any of those medications at the time. (this is in contrast to the evidence of Ms Boyd that she had detoxed Mr Boyd prior to admission).  Although Mr Boyd claimed opioid withdrawal, there was no clinical evidence of this and he received no substitution treatment. Withdrawal symptoms eventually settled. Mr Boyd was discharged early due to conflict with another patient.  Dr Ntsowe identified symptoms and signs suggestive of ADHD and unusual social engagement and interaction and repetitive patterns of behaviour and body movements which Dr Ntsowe took as evidence of ASD. These included an obsession with particular computer games and YouTube channels, difficulty with change and frequent body rocking movements.[62]

The ASD assessments

[62] Pages 504-507 of Exhibit 1

1. Multidisciplinary report autism spectrum disorder diagnostic assessment dated 3 December 2020.[63] 

   [63] Pages 9 to 21 of Exhibit 1

   a.This report was based on two consultations with Mr Boyd in 2020 when he was 16 years 8 months of age. The assessment included screening measures for ASD, parent and self-report documents and copies of relevant prior clinical assessments.  Additional observations were requested from Mr Boyd’s school.

   b.It was noted that Mr Boyd had been involved with several mental health services who had identified neurodevelopmental differences, including elevated levels of ASD traits, along with a strong family history of ASD.  Those who had expressed concern about ASD were noted to be Mr Boyd’s GP, paediatrician, clinical psychologist and psychiatrist.

   c.Established diagnoses of ADHD, Tourette’s, mixed anxiety and depressive disorder, and OCD were noted.

   d.Assessments completed included social communication questionnaire, Autism Spectrum Quotient-10, Autism Diagnostic Observation Schedule and Clinical Evaluation of Language Fundamentals.  Although Mr Boyd was assessed as having low language function, the report recorded that none of the other assessments indicated ASD. 

   e.The report noted Ms Boyd as having reported Mr Boyd’s early social interactions as ‘normal’ and reciprocal and his peer relationships as positive and participatory with well-developed play skills.  Ms Boyd’s information was that Mr Boyd was still able to engage in conversation in a reciprocal fashion. This is in stark contrast to Ms Boyd’s evidence at hearing and to other practitioner, and from reports from school. 

   f.Mr Boyd was reported to be resistant to hugs as a child and to continue to have difficulty with eye contact.  She could not recall whether he used gestures as a child but reported he did now.

   g.The report noted that Mr Boyd did not have a history of aligning his belongings or sort or categorise objects.  This is in contrast to Mr Boyd’s evidence to these assessors where it is noted he liked to organise his belongings and regularly check they were in the same place[64]. It was noted Mr Boyd had engaged in toe walking, demonstrated self-injurious behaviours and since childhood had rocked himself to sleep while humming.  The report also noted other repetitive sounds, such as sniffing and throat clearing had been reported but conceptualised them as ‘tics’ rather than indicative of ASD.

   h.Restricted diet was noted in childhood but this had improved over time.  Strong interests, described as all-consuming by his mother, were recorded.

   i.In relation to sensory preferences, the only items recorded of note were that he insisted on sleeping unclothed and only with specific doona covers. He was noted to prefer dim lighting and to be unable to sleep without earplugs.

   j.The report noted Ms Boyd as saying Mr Boyd had the capacity to act in a way with other people that he deemed they would like and which he thought would achieve his wishes. He was recorded as misinterpreting social situations and being very literal in interpretation.

   k.Mr Boyd’s self-report was that he enjoyed mixing with other people but had difficulty responding to conversation.  He did not consider himself very affectionate and felt awkward making eye contact.  He enjoyed scraping and picking at his fingers and liked to arrange his belongings and check that they remained in the correct locations.

   l.The assessors observed Mr Boyd to have ‘lovely social communication behaviours’ during the ADOS-2 although he swore often and was occasionally intrusive.  His speech was noted to be slow and his intonation flat.  The assessors did not deem this to have ‘the monotonous quality often associated with ASD’.

   m.Mr Boyd’s language skills were assessed to be in the low range, with word finding difficulties, and difficulty in understanding and using specific vocabulary.  He was noted to have trouble understanding sentences and difficulty with grammar and retelling oral narratives. He was highly frustrated not being able to effectively communicate his inner thoughts, smacking his head at one point.  He tended to repeat himself.

   n.In summary the report noted that given the strong family history of ASD Mr Boyd was at heightened genetic liability for ASD related traits. It was noted that the core features of ASD often overlapped with Mr Boyd’s established diagnoses of ADHD and Tourette’s Syndrome. It was suggested his social difficulties were more related to ADHD characteristics such as impulsivity and emotional reactivity, although his significant problems with executive function (planning, impulse control and inhibition) were seen to be characteristic of both ADHD and ASD.  On the whole it was felt Mr Boyd’s presentation was subthreshold for an ASD diagnosis and fit within his current diagnoses.

   o.The report concluded that:

   Nevertheless, the constellation of William’s neurodevelopmental differences and their impact on his mental health is having a significant functional impact, and a resultant effect on his school attendance and academic achievement. William’s difficulties are likely to have an ongoing impact on his social and economic participation, as well as family functioning. Therefore, we would hope that William and his family are able to access tailored intervention and support to assist with William’s learning, future employment, daily living skills, and independence as he transitions to adulthood.

   [64] Page 18 of Exhibit 1

2. Report of Dr SL Collinson, Clinical Neuropsychologist, dated 29 January 2024[65]

   [65] Pages 374-380 of Exhibit 1

   a.Dr Collinson’s report was written following referral of Mr Boyd by Dr Furlong, psychiatrist.  Mr Boyd was 19 years of age at the time and enrolled in a TAFE bridging course.[66]  It is not clear what documents Dr Collinson had access to at the time of his assessment, but he was aware of previous diagnoses of ADHD, OCD, mixed anxiety/depression, and Tourette’s Syndrome. He did not reference the earlier ASD assessment.

   b.Dr Collinson’s assessment involved information from parental and self-report, and administration of standardised assessment tools including Autism Spectrum Quotient, Behaviour Rating Inventory of Executive Function – Adult Version, Personality Assessment Inventory and partial Wechsler Adult Intelligence Scale Testing.

   c.Dr Collinson’s summary of reported difficulties from both Ms Boyd and Mr Boyd include challenging and destructive behaviours from the very beginning of his educational experience in kindergarten and throughout his schooling, poor social integration and skills, poor academic achievement and language delay, social anxiety, compulsions and requiring high levels of support in routine tasks at home and at school.  Substance use issues were noted.[67]

   d.Dr Collinson’s observations were of an uncomfortable person with limited affective expression and variable eye contact. He was compliant, appeared to be suppressing anger and frustration at times and his speech was affected by difficulty expressing how he felt, finding the correct words and effectively communicating what he wanted to say.

   e.Mr Boyd’s score in the Autism Spectrum Quotient was noted to be above the diagnostic cut off, indicating the presence of clinically significant autism traits. Dr Collinson noted Mr Boyd’s responses indicated difficulties in understanding others’ mental and emotional states, rigidity/inflexibility, restricted interests, highly focussed attention to detail, social integration problems, difficulty with imagination and mentalising.

   f.Ms Boyd completed a BRIEF assessment (Behaviour Rating Inventory of Executive Function – Adult version). There was no inconsistency in her responses and the negativity scale was high indicating many negative concerns about executive function.

   g.The Personality Assessment Inventory was completed by Mr Boyd. Dr Collinson noted the responses were extremely negative, demonstrating a pattern typically associated with a personality functioning within the borderline range and in a state of crisis. The responses indicated emotional lability, mood swings and episodes of poorly controlled anger, a preoccupation with being rejected by others, impulsivity and rigidity.

   h.Dr Collinson conducted a partial Wechsler IQ assessment which indicated perceptual reasoning within the average range, processing speed in the borderline range and working memory in the low average range. Processing speed was considered not to be commensurate with Mr Boyd’s general abilities as measured by his perceptual reasoning index.

   i.In conclusion Dr Collinson was of the view Mr Boyd presented with a complex set of needs. His profile supported the diagnosis of ADHD and mixed anxiety/depression states, and demonstrated strong obsessional and compulsive aspects suggestive of OCD which he felt may equally fall within the rubric of ASD.   Dr Collinson was of the view Mr Boyd’s social communication difficulties and restricted interests had been present in childhood but had become increasingly manifest as Mr Boyd matured. His symptoms resulted in significant impairment in personal, family, social and educational contexts.

   j.Dr Collinson’s diagnosis was of symptoms consistent with DSM-5 criteria for ADHD and DSM-5 criteria for ASD Level 1, without intellectual impairment but with accompanying language impairment.

   [66] Page 374 of Exhibit 1

   [67] Page 375 of Exhibit 1

3. Report of Martin Exell, clinical psychologist, dated 16 February 2024[68]

   a.It was Ms Boyd’s evidence that she had approached Mr Exell for assessment as she had been happy with his service when he diagnosed her younger son.

   b.While Mr Exell did have access to Dr Collinson’s earlier report, it is not clear what other documents he was provided with.  He was aware of earlier diagnoses of ADHD, anxiety/depression, OCD and Tourette’s Syndrome.  He does not reference the initial multidisciplinary ASD assessment in his report and in his oral evidence he confirmed he was not aware of this.

   c.Mr Exell conducted assessments including those Wechsler assessments not completed by Dr Collinson, some academic performance testing and a Vineland 3 assessment.  He interviewed both Ms Boyd and Mr Boyd.  His assessment was otherwise a consideration of the DSM-5 criteria based on this information and his observations.

   d.Mr Exell’s conclusion was that Mr Boyd had significant variation in his performance on the Weschler subtests which he considered was common in people who are neurodiverse such as those with ADHD and ASD. 

   e.Mr Boyd was noted to have difficulty in reading comprehension with items that required an understanding of inference.  This was noted to be quite common in people with an ASD.

   f.Mr Exell’s observation was that Mr Boyd had much greater difficulty in completing tasks when he had sensory overload and he noted that during the assessment Mr Boyd was bothered by noises from the waiting room.

   g.Mr Exell noted that based on the Vineland assessment Mr Boyd’s adaptive behaviour composite score was significantly lower than his assessment of intellectual ability should suggest.  Mr Exell observed this is common in people with an ASD.

   h.Considering the DSM-5 criteria, and based on reporting from Ms Boyd and Mr Boyd, Mr Exell’s opinion was that Mr Boyd met the ASD criteria, level 2.  He had poor social communication skills, abnormal eye contact and body language, and difficulty in developing and maintaining friendships. He demonstrated repetitive patterns of behaviour and interests, such as rocking and making noises to fall asleep or to calm himself, difficulty in adapting to changes in plans and obsessional interests on a serial basis.

   [68] Pages 381 – 390 of Exhibit 1

Oral evidence of Mr Exell, clinical psychologist.

1. Mr Exell attended to give evidence under affirmation at the hearing.

2. He advised he has worked in the area of autism since 1986 and in that time had undertaken hundreds, if not thousands, of assessments of people with autism.

3. Mr Exell’s evidence was that in undertaking a diagnostic assessment for autism he considers the criteria set out in part A and part B of the DSM-5 autism criteria.  Part A refers to the social and emotional aspects of a person and Part B considers a range of restricted and repetitive behaviours which may be displayed by a person. There are also a couple of, or two or three supplementary criteria which are primarily related to the age of onset and whether the person has intellectual disability.

4. Mr Exell’s normal practice was to undertake a full psychometric assessment of a client, but as Mr Boyd had recently gone through such testing with Dr Collinson report he was unable to do so with Mr Boyd. There was some concern about the validity of psychometric testing so soon after a previous test because of the impact of ‘practice’.  As a result Mr Exell only administered a small number of psychometric tests that Mr Boyd had not been subject to previously.

5. Mr Exell advised his assessment of Mr Boyd was undertaken over probably three face-to-face appointments.  He confirmed that he took a developmental history from Ms Boyd, undertook his own observations of Mr Boyd during the assessment and administered standardised assessment tools.  He noted that he adjusted the tools applied according to his observations of Mr Boyd’s behaviour (particularly in relation to Mr Boyd’s aggressive behaviour) during the assessment.  

1. Mr Exell’s report was produced at the request of Ms Boyd and resulted in a diagnosis of ASD level 2.  It was the Agency’s submission that this request may have represented Ms Boyd ‘diagnosis shopping’, in seeking to obtain an ASD-2 diagnosis and a pathway to the NDIS. Dr Vidovich instead thought it was not unusual for parents to continue to seek answers to the difficulties their children faced.

2. It was Dr Vidovich’s opinion that Mr Excell did not appear to have administered any questionnaires or assessment batteries specific to the clinical diagnosis of ASD, rather his diagnosis appeared to be based on observation of the discrepancy between Mr Boyd’s level of intelligence and his day-to-day functioning. Dr Vidovich was also concerned that Mr Excell appeared to have given no consideration to the established co-morbid conditions and the impact these might have on Mr Boyd’s presentation.

3. Mr Exell’s evidence at hearing was that he did not consider Mr Boyd’s other conditions in undertaking this assessment because his brief was to assess for autism.  He did feel that he had taken good developmental information from Ms Boyd even if this was not set out in his report.  His opinion was that practitioners often differed about the tests that should be administered. His assessment avoided tests undertaken by Dr Collinson and his emphasis was on the qualitative information he obtained from interacting with Mr Boyd during the assessment and consideration of how observed behaviour might impact on activities in real life. He stood by his assessment and accepted that diagnosticians may on occasion disagree.

Consideration

1. The NDIS Act speaks of ‘disabilities’ and ‘impairments’ but neither are defined in the Act.

2. Section 24 of the NDIS Act and Rule 5.1 of the Access Rules speaks of a person ‘having a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to impairments attributable to a psychosocial disability’.

3. In Mulligan v NDIA [215] FCA 544 (Mulligan), a matter on appeal from the Tribunal, Mortimer J (as she then was) observed that the access criteria in Ch 3 of the NDIS Act were an essential component of the NDIS, as they imposed a number of thresholds which must be met before access to the NDIS would be granted. The purpose of these thresholds was to identify the ‘subcategory of persons with a disability intended to be beneficiaries of the Scheme’.[71]

   [71] Mulligan v NDIA [215] FCA 544

4. Mortimer J said:

   The term ‘disability’ is used in the Act, and in s24, as a descriptive concept for the overall effect of a person’s impairments on that person’s abilities to participate in all aspects of personal and community life. Threshold provisions such as s24 operate not on the concept of disability, but on the concept of an impairment, which, as the Tribunal correctly observed at [19] of its reasons, is generally understood as involving the loss of or damage to a physical, sensory or mental function.[72]

   244.    The primary consideration for access requests, therefore, is the concept of ‘impairment’.  It is:

   a.the prospective participant’s impairment which must be permanent (not the underlying medical condition); and

   b.the severity of the impairment’s impact on function which will determine whether the prospective participant may be eligible for access to the Scheme or not.

   [72] Ibid at [51]

5. The primary task before me therefore, should be to identify Mr Boyd’s relevant impairments and then to determine whether these meet the other qualifying criteria in section 24.

6. However, the Access Guidelines also provide for circumstances in which diagnosis may offer a shortcut to access to the Scheme.[73] If a prospective participant has a Level 2 or 3 ASD diagnosis, the Guideline provides that these are conditions that are likely to meet the disability requirements.  If a prospective participant has a ‘pervasive developmental disorder not meeting severity criteria in List A or List C, such as autism’, Asperger syndrome, atypical autism or childhood autism, the Guideline suggests these List B diagnoses are likely to result in a permanent impairment.

   [73] Applying to the NDIS Guideline – Appendices dated 10 December 2024; and page 263 and 267 of Exhibit 1

7. For this reason, then, I must consider the issue of whether the evidence supports a finding that Mr Boyd has an ASD diagnosis, and if so, whether the evidence supports a finding the severity of the ASD enlivens the List A or B pathways.

Is there an ASD Diagnosis?

1. I have considered all the medical evidence before the Tribunal and the oral evidence presented at hearing. To the extent I am obliged to make a finding, I find that I prefer the report of Dr Collinson and his diagnosis of ASD level 1, ADHD, mixed anxiety and depression, Tourette’s and OCD. 

2. I make this finding for the following reasons:

   a.Diagnosis of ASD is based on an interpretation of information by the diagnostician.  There is no one test available which may definitively determine whether a person has ASD or not. This is further complicated by the fact that ASD is a spectrum condition which may present differently in every person. The presence of other co-morbid conditions may further ‘muddy’ the diagnostic waters.  It appears that diagnostically this is a condition on which reasonable minds may disagree, particularly in ‘milder’ forms.

   b.The evidence suggests that Mr Boyd’s social presentation outside the family had been idiosyncratic from an early stage. I have had regard to Dr Vidovich’s oral evidence that the presentation of someone with level 1 ASD may not trigger significant attention, apart from some quirky behaviours, but someone with ASD Level 2 is likely to be obvious to the casual observer.

   c.I consider it significant that those treating practitioners with long standing involvement with Mr Boyd all held (and maintained) the belief that Mr Boyd’s presentation reflected an ASD diagnosis.  Dr Collinson’s report and assessment was produced on referral from Dr Furlong, long-term psychiatrist.  Despite the Autism WA report, Dr Furlong, from her long association with Mr Boyd, retained the impression that there was an undiagnosed ASD affecting his presentation. I consider this significant.

   d.Dr Collinson has qualifications as a neuropsychologist;

   e.Dr Collinson did undertake a developmental assessment, taking information from Ms Boyd, and self-report from Mr Boyd.  I acknowledge the details of this assessment were presented in dot point fashion and emphasised characteristics which might signify his ADHD diagnosis, however, social integration issues were reported in each life stage, as well as restrictive interests, difficulty ‘reading’ social relationships and obsessive thoughts and compulsions. He noted that the long-standing OCD diagnosis may instead demonstrate behaviours that fit within the rubric of ASD;

   f.Dr Collinson administered ASD-specific assessment tools, the results of which indicated clinically significant ASD traits;

   g.Dr Collinson considered the impact of Mr Boyd’s other conditions but did not discount the significance of the ASD symptomology reported. These included significant differences in non-verbal communicative behaviours (eye contact, facial expression and gesture), deficits in social-emotional reciprocity and deficits in developing and maintaining relationships, unusual/obsessive interests, hyper-vigilance and emotional reaction to sensory aspects, and excessive rigidity.

   h.Dr Collinson noted that the onset of these traits had occurred in early childhood but had become increasingly manifest as Mr Boyd entered teens and early adulthood.  This observation was in line with Dr Vidovich’s oral evidence that as an individual leaves the scaffolding of childhood, expectations continue to increase until they exceed the capability of the individual and trigger attention for a diagnosis.

   i.The original Autism WA assessment was undertaken at a time when Mr Boyd (and possibly his mother) were ambivalent, if not resistant, to the idea of an autism diagnosis. Mr Boyd was actively using cannabis (and other drugs) at the time but there was no discussion of the impact of this in this report.[74] It is not clear whether they were aware of it.

   j.Although there were clear indications of ASD traits, (and a strong family history) these were discounted in this report without sufficient explanation, aside from opining the current multiple diagnoses were sufficient. The report made a finding Mr Boyd demonstrated no rigidity or repetitive behaviours but spoke of an OCD diagnosis. Mr Boyd was reported to order and check his possessions, to rock and hum himself to sleep and to be unable to sleep except with earphones and certain doona covers. Lack of eye contact was noted but a subjective assessment made that Mr Boyd’s slow and flat intonation was insufficiently monotonous for an ASD diagnosis. There were no details about the tests administered provided.

   k.Given the multiple long-term practitioners who had questioned an ASD diagnosis in relation to Mr Boyd (including the school psychologist), and the lack of progress from medication and therapy trials, there did not appear to be consideration given by Autism WA to the possibility of a co-morbid ASD. 

   l.While I acknowledge Mr Exell’s experience and very practical approach to assessment, I find that failing to consider the impact of Mr Boyd’s other co-morbid conditions undermines the robustness of this assessment.

   [74] Page 299 and 340 of the hearing papers

3. To the extent that it is required, therefore, I prefer the assessment of Dr Collinson and accept his conclusion that Mr Boyd has ASD Level 1 (along with the other co-morbid conditions).  I find this is a List B condition productive of neurological impairments with a presumption of permanency that I accept.

What are the relevant impairments? – Section 24(1)(a)

1. The constellation of conditions Mr Boyd is living are productive of impairments which affect his day-to-day function.

2. In their SFIC the Agency accepts that Mr Boyd meets the criteria in section 24(1)(a) of the Act on the basis of neurological impairment and impairments to which a psychosocial disability is attributable on the basis of the conditions of ADHD, Tourette’s Syndrome, OCD, Mixed Anxiety and Depressive Disorder, Adjusment Disorder, Social Phobia and Substance Use Disorder. I adopt this as a finding and also find Mr Boyd has neurological impairments attributable to his condition of ASD Level 1.

Are Mr Boyd’s impairments permanent – Section 24(1)(b)

1. Permanency of a prospective participant’s impairment is an essential threshold consideration for the Scheme. Clearly, if the effects of a condition on a person’s ability to engage in life activities (the impairment) may be ameliorated by treatment, the person’s need for supports may be lessened or negated.

2. In Davis v NDIA [2022] FCA 1002 (Davis), Mortimer J held that ‘permanent’ did not mean ‘irreversible’ or ‘untreatable’ (as contended by the Agency) nor just ‘longstanding’ (as contended by the applicant).  Rather she considered the correct meaning of ‘permanent’ when considered in the context of ‘impairment’ was ‘enduring’.[75] It was the impairment (not the underlying and causative condition) which must be permanent, so as to require supports funded under the NDIS Act on an ongoing basis.

   [75] Davis at [87]

3. Section 27 of the NDIS Act provides for the making of rules for determining any matter for the purpose of sections 24 and 25. The Access Rules were made for this purpose.

4. Rules 5.4 to 5.7 are the rules relevant to the issue of permanency. Rule 5.4 provides that:

   An impairment is, or is likely to be, permanent … only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

5. In Davis, Mortimer J held that ‘to remedy’ meant more than ‘just to relieve or improve’.  Rather the term should be interpreted to mean something akin to ‘a removal or cure of the impairment’.[76] 

   [76] Ibid at [136]

6. In order to be ‘enduring’ therefore, an impairment must remain after all known, available and appropriate, evidence-based clinical, medical or other treatment has been tried.

7. I have considered the evidence before the Tribunal and note the following:

   a.Mr Boyd’s ASD level 1 is a condition which the Access Guidelines considers is likely to meet the permanent impairment requirement.  I find that Mr Boyd has a permanent neurological impairment which impacts his social communication, executive function and cognition as a result of the condition of ASD level 1.

   b.Evidence of Dr Afchani that in relation to his ADHD and mental health conditions Mr Boyd had trialled Strattera, Ritalin, fluoxetine, lisdexamphetamine, Sertraline, Atomoxetine, Methylphenidate, Guanfacine without success.  Mood had improved on Valdoxan for a period, but this was not continued.[77] ADHD resulted in neurological impairment which impacted Mr Boyd’s executive function and emotional regulation. Although medication and psychological intervention strategies to manage this had been tried, the impairment endured. Mental health conditions such as Mr Boyd’s anxiety/depressive disorder and OCD created impairments to which a psychosocial disability is attributable these had not responded to medication or psychological treatment. In Mr Boyd’s situation, despite multiple treatment modalities, the impairments endured.

   c.Evidence of Dr Lo that Mr Boyd had exhausted all treatment options including various antidepressants, stimulant/non-stimulant medications, psychiatric medications and counselling.[78]

   d.Evidence of Mr Craig Russell, clinical psychologist at CAMHS, covering all the psychological treatment modalities tried. It was Mr Russell’s opinion there were no other known, available and appropriate evidence-based treatments likely to remedy Mr Boyd’s impairments arising from his mental health and ADHD conditions.[79]

   e.Evidence of Dr Yulia Furlong, long term psychiatrist for Mr Boyd, that Mr Boyd’s mental health diagnoses are severe, and his symptoms had not improved in the last five years in spite of multiple comprehensive treatments.  She opined that ASD was impacting his function as well.[80]

   f.Evidence of Dr Ntsowe that Mr Boyd had been successfully detoxed at Abbotsford Hospital in May and June 2025.[81] Oral evidence of Mr Boyd that he had been sober for over two months prior to hearing.  Oral evidence of Ms Boyd that Mr Boyd continued to attend an outpatient rehabilitation group and that she controls his access to money, his phone and his means of obtaining any drugs for illicit purposes.  Detoxification has been completed and Mr Boyd remained abstinent.

   [77] Pages 314-346 of Exhibit 1

   [78] Page 65 of Exhibit 1

   [79] Pages 364 and 365 of Exhibit 1

   [80] Page 372 of Exhibit 1

   [81] Page 504 -505 of Exhibit 1

8. I have noted the Agency’s concern about the impact that Mr Boyd’s substance use has had on his function.  They contend this has not yet been fully treated.  I note that the totality of the evidence is that Mr Boyd has had demonstrated functional impairments arising from his other conditions since well before his substance use issues.  I also accept the evidence noted above about successful detoxification and ongoing treatment support to maintain Mr Boyd’s current sobriety.

9. On the basis of the above evidence, I find that Mr Boyd’s neurological impairments and impairments attributable to psychosocial disability are permanent as required by section 24(1)(b) of the NDIS Act. In relation to the Agency’s concern about the GP’s recent referral of Mr Boyd for ongoing treatment, I consider this treatment to be aimed at management of his symptoms rather than in the expectation of cure.

Is there substantially reduced functional capacity in the relevant activities – s24(1)(c)

1. Section 24(1)(c) requires that a prospective participant’s impairments must result in substantially reduced functional capacity to undertake one or more of six identified activities. There is no definition in the NDIS Act in relation to the activities, but the Access Guidelines suggest the following:

   a.Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.

   b.Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.

   c.Learning – how you learn, understand and remember new things, and practise and use new skills.

   d.Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.

   e.Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.

   f.Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.[82]

   [82] NDIS Access Guidelines October 2024

2. In Mulligan v NDIA,[83] Mortimer J stated that:

   The legislative scheme contemplates a relatively high degree of precision by decision-makers…in assessing what a person can and cannot do.  The assessment to be undertaken is avowedly functional and multi-faceted.

   [83] Mulligan [2015] FCA 544 at [55]

3. This assessment was not considered to be a comparative exercise, assessing what one person could do against another, but rather a ‘functional, practical assessment of what a person can and cannot do’.   It is sufficient, for the purposes of the Act, for a person to have substantially reduced functional capacity in relation to one on the identified activities.[84]

   [84] Mulligan at [56]

4. In Davis Mortimer J clarified that her use of the term ‘high degree of precision’ was not intended to imply that there was a higher standard of proof or satisfaction required of the decision-maker, rather that the task was specific and required the decision-maker to consider all the matters set out in the NDIS Act.[85]

   [85] Davis at [61]

5. In National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster), the Full Court held that it was not sufficient that a person had difficulty with only one or two tasks that comprise a part of the activity, but rather the focus should be on whether they were unable to manage the whole or majority of the activity.  The fact that a person may undertake an activity in a different manner to others did not constitute an inability.[86]

   [86] Foster at [65]-[67]

6. Rule 5.8 of the Access Rules specifically addresses the issue of when an impairment may result in substantially reduced functional capacity to undertake relevant activities.  In Mulligan, these were considered ‘deeming provisions’, such that if a prospective participant met the criteria in Rules 5.8(a), (b) or (c), the effect would be to mandatorily include them in the category of persons with substantially reduced functional capacity.[87]

   [87] Mulligan at [77]

7. However, that is not the end of the task. Consideration of the section 24(1)(c) criterion must be completed in two stages:

   a.    Firstly the Tribunal must consider whether the prospective participant’s circumstances are captured by the deeming provisions in the Access Rules; and

   b.    Secondly, if the deeming provisions do not apply, the Tribunal must consider if the prospective participant has a substantially reduced functional capacity outside of those provisions. [88]

   [88] Mulligan at [77]

1. Rule 5.8 provides that:

   An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities – communication, social interaction, learning, mobility, self-care, self-management …if its result is that:

   a.     The person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

   b.     The person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

   c.     The person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

Communication

1. The Guidelines suggest that the activity of communication encompasses ‘how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you’.

2. The evidence in relation to this activity is mixed but overall, I find that Mr Boyd’s circumstances are not captured by the deeming provisions, nor does he demonstrate substantial reduction in functional capacity outside those provisions.  I make these findings on the following basis:

   a.Mr Boyd attended at Tribunal and gave oral evidence on his own behalf.  Although he sometimes demonstrated clear difficulty in maintaining his train of thought and in word finding at times, he retained the ability to understand and respond to questions appropriately. Mr Boyd had also submitted a handwritten statement in relation to his application which was legible and fluent;[89]

   b.Mr Boyd has demonstrated the ability to maintain appropriate conversations in other settings;[90]

   c.Although Mr Boyd is noted to have had specific difficulty with language, including word finding difficulties, difficulties understanding specific vocabulary, and difficulty in constructing sentences with conjunctions, he was able to express himself. It was thought he had more difficulty in understanding than in speaking.[91]

Social interaction

[89] Page 73 of Exhibit 1

[90] Page 29 of Exhibit 1

[91] Pages 20-21, page 383 of Exhibit 1

1. The Access Guidelines characterise this activity as including ‘how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.’

2. In the matter of Madelaine and the NDIA [2020] AATA 4025 (Madelaine), Deputy President Humphries held that the criteria referred to in the Guidelines were directed principally at personal skills for social interaction, and only marginally towards taking the opportunity to exercise those skills.[92] In the more recent matter of NDIA v Lampard [2025] FCAFC 139 (Lampard) the Full Court approved this reasoning, deeming that functional capacity was the relevant consideration, not functional performance.[93]

   [92] Madelaine at [87]

   [93] Lampard at [50] to [51]

3. Having regard to the evidence I do not consider that Mr Boyd’s circumstances are captured by the deeming provisions.  Although he does not enjoy it and avoids it where possible, he is able to undertake social interaction without the need for assistive technology, or the assistance of other people.

4. However, outside these provisions I am satisfied that the evidence supports a finding that Mr Boyd is substantially impaired in his capacity for the activity of social interaction. I make this finding on the basis of the following:

   a.Throughout his school life Mr Boyd has demonstrated impaired social interactions with his peers, often resulting in physical altercations, swearing and explosive meltdowns which damaged facilities. Mr Boyd’s inability to regulate his emotions is recorded in multiple practitioner reports and assessments.  Mr Boyd’s evidence is that he is just as likely to ‘explode’ outside the home as he is within. It was Ms Boyd’s evidence that Mr Boyd’s emotional dysregulation had lost him a number of potential friends when he was in school;[94]

   b.Mr Boyd is recorded as having significant impulse control issues with a tic disorder that presents in social interaction when Mr Boyd uses obscene words and phrases, including the use of swear words in the context of anxiety and sensory overload;[95]

   c.The Autism WA report noted Mr Boyd’s social approach was intrusive and at times inappropriate;[96]

   d.His long-term treating psychologist, Mr Craig Russell described him as having ‘no friends and suspiciousness of young people he doesn’t know’.  This suggests an inability or lack of the skills required to develop and maintain friendships.

   [94] Pages 124, 126, 130, 317 of Exhibit 1

   [95] Page 128 of Exhibit 1

   [96] Page 18 of Exhibit 1

5. Mr Boyds’ inability to manage social interactions appropriately has resulted in a significant loss of opportunity, having been frequently suspended from school and other support programs, and frequently changing schools to escape bullying.  Mr Exell considered that Mr Boyd’s inability to manage his emotions when receiving negative feedback would continue to impact him in an educational or work setting.

6. I am satisfied on the basis of the totality of the evidence that Mr Boyd has a substantially reduced functional capacity to undertake the activity of social interaction as a result of his neurological impairments and psychosocial disabilities and that he thereby meets the criterion in section 24(1)(c).

The other activities

1. Substantially reduced functional capacity in only one of the nominated activities is all that is required for a prospective participant to meet the disability requirements.  Having made the above finding in relation to social interaction, there is no obligation for me to consider all the other activities.

2. For completeness, however, I consider that the evidence would also support a finding that Mr Boyd’s functional capacity is substantially reduced in the activities of learning, self-care, and self-management.

3. In relation to learning, this finding is based on the evidence demonstrating significant issues with executive function on Mr Boyd’s part, with poor concentration, reduced short term memory and difficulty with multi-staged instructions.[97]  He had long-standing difficulties in completing schoolwork and although he has been able to learn things that interest him (such as computer games and accessing drugs on the ‘black market’) these skills had not been reproducible across the range of skills acquisition required for full participation in life.  He was unable to manage the learning pressures of university study.[98]

   [97] Pages 349, 363, 368, 374, 378, 383 of Exhibit 1

   [98] Page 15 of Exhibit 1

4. In relation to self-care, the evidence of Ms Boyd, Mr Muhummed and Mr Ip is that without regular prompting Mr Boyd will not complete his self-care routines. Although physically capable of the activities, his executive function is so poor he is unable to plan, commence and finish these activities without prompting. He is unable to remember multiple instructions and forgets to look for and read visual prompts that have been left for him. Mr Boyd’s evidence to the Tribunal was that his mum ‘forced him to do things’, otherwise he would not do them.[99]

   [99] Pages 350 to 351,

5. In relation to self-management, Mr Boyd has been placed under a guardianship and administration order by the State Administrative Tribunal with a finding that he is unable, by reason of mental disability, to make reasonable judgements in respect to matters relating to all of his estate, and incapable of looking after his own health and safety. Mr Boyd’s evidence to the Tribunal was that he knew he was supposed to be a functioning adult, but he just could not manage on his own.[100]

   [100] Page 472 of Exhibit 1

6. In considering Mr Boyd’s function I have also had regard to the fact that every assessor involved in this matter (including the Autism WA assessment panel and Dr Vidovich) has considered that the combination of Mr Boyd’s comorbid conditions have produced significant functional incapacity impacting all aspects of his life and requiring ongoing, structured support.

7. I am satisfied and I find that Mr Boyd meets the criteria in section 24(1)(c) of the NDIS Act.

Do the impairments affect the person’s capacity for social and economic participation?

1. There is no dispute between the parties that Mr Boyd’s impairments affect his capacity for social and economic participation. The evidence shows Mr Boyd has no ongoing social relationships and was unable to manage the requirements of the only employment he has obtained, packing pizzas.

2. I find he meets the criteria in section 24(1)(d) of the NDIS Act.

Is Mr Boyd likely to require the support under the National Disability Insurance Scheme for his lifetime? – Section 24(1)(e)

1. In Foster, the Full Court considered that the statutory task before the Tribunal in considering this criterion was to determine whether the need for the support arose in respect of substantially reduced functional capacity to participate in an activity as assessed in accordance with s24(1)(c).[101]

   [101] Foster at [93]

2. The Agency contends that the services Mr Boyd requires are best provided for by the mainstream health system under a GP mental health care plan or a chronic disease management plan.

3. Having regard to the totality of the evidence and the recommendations made in the two functional capacity assessments on file, I disagree.  

4. Mr Boyd has substantially reduced functional capacity in the activities of social interaction, learning, self-care and self-management.

5. Both All Round Occupational Therapy and Mr Ip (who has been working with Mr Boyd since the beginning of the year) were of the view Mr Boyd required:

   a.support worker assistance to build Mr Boyd’s capacity in self-care and to encourage social participation;

   b.occupational therapy intervention for capacity building across life tasks;

   c.a behaviour support practitioner in relation to improving emotional regulation skills;

   d.psychological intervention to address anxiety and obsessive thoughts and actions; and

   e.speech therapy to engage with Mr Boyd’s language and speech difficulties.  

6. Dr Furlong, in her report dated 14 November 2023, submitted that:

   William’s mental health condition and neurodevelopmental diagnoses interact with his social environment, which presents barriers to his equality with others. His psychosocial disability restricts his ability to:

   ·Be functioning optimally

   ·Be in certain types of environments (with peers, in noisy and bright environments)

   ·Concentrate

   ·To attend to most daily tasks (unable to leave house on many occasions due to severe ritualistic behaviours and obsessions).

7. Dr Furlong went on to say Mr Boyd required psychological therapy, occupational therapy, positive behaviour support and social skills training to allow him to address his disabilities.

8. I consider that the supports Mr Boyd requires are specialised supports necessary to address the disability arising from Mr Boyd’s neurological and psychosocial impairments.  They are supports best provided under the NDIS.

9. I am satisfied and find that Mr Boyd meets the criteria in section 24(1)(e) of the NDIS Act.

Conclusion

1. For the reasons set out above I am satisfied and I find that Mr Boyd meets the disability requirements for access to the Scheme. As I have reached that conclusion, there is no requirement for me to consider the early intervention requirements. 

2. As I have reached a different conclusion to the decision under review, I will set that decision aside and substitute it with a decision that Mr Boyd meets the access criteria in section 21 of the NDIS Act.