Boughen and Secretary, Department of Social Services (Social services second review) [2016] AATA 867 (1 November 2016)

Last Updated: 2 November 2016

Boughen and Secretary, Department of Social Services (Social services second review) [2016] AATA 867 (1 November 2016)

Division	GENERAL DIVISION
File Number	2016/1912
Re	Laurel Boughen
	APPLICANT
And	Secretary, Department of Social Services
	RESPONDENT

DECISION

Tribunal	Senior Member T Tavoularis
Date	1 November 2016
Place	Brisbane

The decision under review is affirmed.

........................[sgd]................................

Senior Member T Tavoularis

Catchwords

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant has 20 impairment points – Applicant only has 10 impairment points – decision under review is affirmed.

Legislation

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Secondary Materials

The Guide to Social Security Law

REASONS FOR DECISION

Senior Member T Tavoularis


1 November 2016

INTRODUCTION

1. On 22 May 2015, Ms Laurel Boughen (“the Applicant”) lodged a claim for Disability Support Pension (“DSP”) listing her medical conditions as asthma, high blood pressure, acute arthritis and depression.^[1]

2. To support her claim, the Applicant provided a pro-forma medical report (based on a Centrelink template) from Dr Ameer Hamza, General Practitioner dated 5 March 2015.^[2] Dr Hamza listed the Applicant’s diagnosed medical conditions as osteoarthritis (“severe form – both knees and feet”), depression and anxiety. He noted other medical conditions that caused minimal or limited impact on this Applicant as asthma, hypertension, reflex sympathetic dystrophy and obesity.

3. The balance of the Applicant’s medical evidence is adequately particularized at paragraph 4.2(b) – (l) (inclusive) of the Respondent’s Statement of Facts, Issues and Contentions. It is apparent from the dates appearing next to each item of medical evidence that there is a dearth of medical evidence contemporaneous with the Applicant’s claim. The consequences of this reality emerge later in this decision.

HISTORY OF THE MATTER

4. The matter has evolved thus:
   • (i) 15 July 2015: A Job Capacity Assessor (“JCA”) prepared a report^[3] and looked at each of the Applicant’s stated conditions. For each condition, the JCA concluded:
     • Morbid obesity: the condition was considered verified by medical evidence and fully diagnosed. However, it was not considered optimally treated. Therefore, no impairment points could be allocated;
     • Chronic pain: this condition was considered fully diagnosed, treated and stabilised but no impairment points were allocated because the functional impact of the condition was considered to be nil;
     • Hypertension: this condition was considered to have been fully diagnosed, treated and stabilised such that an impairment rating could be allocated to it. However, no impairment rating was allocated because the JCA found the condition was well managed with medication;
     • Asthma: the JCA thought this condition was fully diagnosed, treated and stabilised and capable of allocation of impairment points. However, no impairment points were allocated on the basis of the condition having limited or no functional impact and that it was otherwise well managed with medication;
     • Psychological/psychiatric disorder: this condition was regarded as fully diagnosed, treated and stabilised and capable of allocation of an impairment rating. However, the JCA considered the functional impact from this condition to be “nil”;
     • Osteoarthritis: this condition was found to be fully diagnosed and treated. The JCA thought any assessment of functional impact was significantly compromised by an overlap in symptomology associated with the Applicant’s increased body mass index (BMI) and morbid obesity. In those circumstances, the JCA did not consider the condition to be fully treated and stabilised and thus formed the view that no reasonable assessment in terms of an impairment rating could be undertaken. Accordingly, no impairment points were allocated to this condition;
     • With reference to the remainder of the Applicant’s stated conditions, namely, hypertension and reflex sympathetic dystrophy, the JCA recommended a nil rating for each impairment on the basis of a nil functional impact resulting from each of them;

(ii) 16 September 2015: a further JCA report^[4] was produced for the following specific conditions:

• Osteoarthritis: this condition was regarded as fully diagnosed but not fully treated and stabilised. Consequently, no impairment rating was allocated to it;
• Psychological/psychiatric disorder: this condition was found to be fully diagnosed, treated and stabilised but received an impairment rating of nil primarily due to an absence of any functional impact on the Applicant’s mental health function;
• Asthma: this condition was regarded as fully diagnosed but not fully treated and stabilised. Consequently, no impairment rating was allocated to it;
• Hypertension: this condition was considered fully diagnosed, treated and stabilised but no impairment rating was allocated to it because the JCA thought it had limited impact on the Applicant’s ability to function;
• Musculo-skeletal disorder: this condition was found to be fully diagnosed but not fully treated and stabilised. Accordingly, no impairment rating could be allocated to it;
• Morbid Obesity: this condition was considered fully diagnosed but was not fully treated and stabilised and therefore could not be assigned an impairment rating.

(iii) 10 November 2015: Centrelink referred the matter to the Health Professional Advisory Unit (“HPAU”) for opinion, which was duly provided on 30 November 2015. The principal question before the HPAU specifically related to the Applicant’s stated condition of osteoarthritis to both knees. In particular, the HPAU’s opinion was sought as to whether the HPAU thought this condition could be considered fully diagnosed, treated and stabilised and, if so, what impairment rating may apply. The HPAU opined:

“This opinion suggests that the conditions Osteoarthritis and Morbid Obesity may be considered permanent, FD [fully diagnosed], but not FTS [fully treated and stabilised].

.......

Obesity increases the risk of progression of OA [osteoarthritis] and evidence suggests that weight reduction reduces disability in patients with OA [osteoarthritis]. Exercise has a place in preventing progression and complications of OA [osteoarthritis] as a component of weight management by improving general health and by preventing the development of further functional disability, particularly in knee OA [osteoarthritis].

.........

This opinion therefore supports the recommendations in a recent Job Capacity Assessment Report (16/09/15) that any assessment of the functional impact of osteoarthritis may be significantly compromised by the overlap of symptomology associated with the client’s significantly increased BMI [body mass index]. The medical evidence suggests that ongoing treatment of morbid obesity may result in improvement in mobility and general functional capacity. The customer’s hypertension and asthma may also improve with attention to weight loss.”^[5]

(iv) 4 December 2015: an Authorized Review Officer (“ARO”) reviewed, inter alia, both JCA reports and all other relevant evidence provided to the Respondent and made the following findings of fact:

“Findings of Fact

After careful consideration of the evidence, I have made these key findings:

• You have the following conditions:
  • - Osteoarthritis of both knees and feet
  • - Depression and anxiety
  • - Asthma
  • - Hypertension
  • - Reflex sympathetic dystrophy
  • - Obesity.

• Your conditions of osteoarthritis, asthma, reflex sympathetic dystrophy and obesity are not accepted as being fully treated and stabilised, and therefore their functional impact cannot be assigned rating points under the Impairment Tables.
• Your conditions of hypertension, depression and anxiety are considered fully treated and stabilised and have been rated 0 points under Impairment Tables.
• Your total impairment rating is 0 points.
• You do not have an impairment rating of 20 points or more.
• You do not have a continuing inability work 15 hours per week or more because of your impairment.”^[6]

(v) under cover of a letter dated 30 December 2015^[7], the Respondent acknowledged the Applicant had applied on 4 December 2015 to this Tribunal for further review of their original decision dated 20 July 2015;

(vi) on 4 March 2016, at first review this Tribunal (via the Social Security and Child Support Division), affirmed the decision under review. This Tribunal, upon first review, made the following findings:^[8]

• the Applicant’s lower limb conditions could not be assessed until morbid obesity had been fully diagnosed, treated and stabilised;
• the Applicant’s depression and anxiety could be rated at 5 points under Table 5 for Mental Health Function;
• the conditions of hypertension and asthma warranted zero points under Table 1 for Functions Requiring Physical Exertion and Stamina;
• the Applicant’s contention about suffering from reflex sympathetic dystrophy and “leaking legs” was insufficiently supported by medical evidence to determine whether these conditions were fully diagnosed, treated and stabilised;

(vii) the present application for second review now before me was filed on
11 April 2016.

THE LEGISLATIVE FRAMEWORK

5. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.

6. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 22 May 2015). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.^[9] Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 22 May 2015 and 21 August 2015 (“the Relevant Period”).

7. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), a legislative instrument made under the Act.^[10] The Tables are function based rather than diagnostic based; and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.^[11] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.^[12]

8. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.^[13] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.^[14]

9. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.^[15]

10. A condition is “fully stabilised” if:

1. either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
2. the person has not undertaken reasonable treatment for the condition and:
   1. significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
   2. there is a medical or other compelling reason for the person not to undertake reasonable treatment.^[16]

11. “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.^[17]

12. An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as failing between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. A rating cannot be assigned in excess of the maximum rating specified in each Table.^[18]

13. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied.

ISSUES FOR THE TRIBUNAL

14. Based on the medical evidence provided during the life of the claim and, as conceded by the Respondent, there is no doubt that the Applicant suffers from a number of medical conditions constituting physical, intellectual or psychiatric impairments.^[19] Consequently, the first of the requirements under s 94(1) of the Act is satisfied.

15. The remaining issues for me to consider are therefore:

1. whether, at the relevant time, the Applicant’s impairments attracted 20 impairment points or more under the relevant Impairment Tables; and
2. if so, whether the Applicant had a continuing inability to work.

CONSIDERATION

Did the Applicant’s impairments attract 20 points or more under the Impairment Table?

16. I propose to deal with this issue by reference to the Applicant’s various medical conditions.

Lower Limb Condition / Osteoarthritis

17. The Applicant’s oral evidence at the hearing corroborated by her husband^[20] indicates this symptom apparently affects the extent to which she can perform activities involving mobility via her legs and feet. I agree with the Respondent’s contention that any impairment rating should be assessed pursuant to Table 3 – Lower Limb Function.

18. The Applicant contended that the appropriate impairment rating for this condition is 20 points because this impairment has a severe functional impact on her activities. Any finding of a severe impairment (and thus 20 impairment points) is very important for present purposes because it would relieve the Applicant of the requirement to meet the provisions of s 94(1)(c) of the Act, specifically that she has a continuing inability to work.

19. This contention seems primarily based on:
    1. the opinion of Dr Ameer Hamza dated 5 March 2015;^[21]
    2. the opinion of Dr Dale Rimmington dated 4 June 2012;^[22]
    100. the radiology report of Dr Brendan Litton dated 27 March 2014;^[23] and
    4. the opinion of Dr Leigh Dotchin dated 28 March 2014.^[24]

20. Dr Hamza opined as follows:
    • this particular symptom of osteoarthritis has the most impact on the Applicant;
    • she has severe pain in both knees and feet;
    • she is not able to walk far without stopping;
    • she is unable to stand for long periods;
    • she experiences stiffness in her joints;
    • the impact of the condition is likely to persist for more than 24 months;
    • he expects the condition to deteriorate in the next two years;
    • he noted the Applicant had taken pain-killing and anti-inflammatory medication (cortisone) and physiotherapy;
    • he thought possible future remedial treatments could comprise cortisone injections and knee replacement.

21. Dr Rimmington noted:
    • the Applicant was overweight;
    • she was suffering from bilateral knee degeneration and arthritis;
    • she could walk a distance of about 100 meters but then needs to stop and rest;
    • she may require knee replacement in the future;
    • her relatively youthful age and a current lack of severity mitigate against knee replacement now;

22. Dr Litton (radiologist) noted degenerative changes in both the Applicant’s knees and right foot.

23. Dr Dotchin noted the Applicant’s weight issue – assessed in the form of increased BMI – contributed to her bilateral knee pain and right ankle pain.

24. To my mind, there are two fundamental difficulties with the stated basis of the Applicant’s contention suggesting 20 impairment points. First, my assessment of the Applicant’s condition(s) must be undertaken at the Relevant Period, that being 22 May to 21 August 2015. Second, the question as to the level of evidentiary weight that can be given to the unscientific evidence of the Applicant and that of her husband.

25. It is well established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period. This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:

“the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances”.

[my underlining].

26. It is an unfortunate feature of the Applicant’s case that none of her medical evidence is contemporaneous with or otherwise probative of her condition(s) during the Relevant Period. The most probative evidence applicable to the relevant period is that of (a) the first JCA Report dated 15 July 2015, followed by (b) the second JCA Report dated
    16 September 2015, which is then followed by (c) the HPAU Opinion provided 30 November 2015.

27. The first JCA reporter thought this lower limb condition / osteoarthritis had been fully diagnosed. However, an impairment rating could not be allocated because:

“.... any assessment of functional impact is significantly compromised by the overlap in symptomology associated with the client’s increased BMI and morbid obesity. As such no reasonable assessment in terms of an impairment rating can be undertaken. It is also noted that treatment for the client’s morbid obesity may significantly improve mobility and functional capabilities in the long term. As such and under current legislative guidelines, this condition cannot be considered fully treated and stabilised.”^[25]

28. The second JCA reporter concurred with the first JCA Report:

“... This report concurs with the previous report dated 17.06.2015 in that any assessment of functional impact is significantly compromised by the overlap of symptomology associated with the client’s increased BMI and morbid obesity. Therefore, no reasonable assessment in terms of an impairment rating can be assigned. Treatment for the client’s morbid obesity, which has yet to commence, may significantly improve mobility and functional capabilities. Therefore under current legislative guidelines this condition cannot be considered fully treated and stabilised.”^[26]

29. The HPAU Opinion adopted an identical theme, quoted earlier at paragraph 4(iii) of these Reasons.

30. Given the two JCA Reports and the HPAU Opinion, I therefore have difficulty accepting the opinion of Dr Hamza as to:

1. the Applicant having undertaken all reasonable treatment in respect of her arthritis condition; and
2. no further treatment is capable of resulting in a functional improvement for this Applicant; and
3. the Applicant not being able to: -
   1. walk around a shopping centre without assistance;
   2. get up to stand from a seated position;
   100. use public transport;
   4. walk on uneven surfaces.

31. Virtually all of the reported medical and other evidence dealing with the Relevant Period speaks of the overlap of symptomology between the stated condition of osteoarthritis and the Applicant’s significantly increased BMI and as a result of her morbid obesity. In short, the clear message of this evidence is that no impairment rating can be allocated because the Applicant’s weight prevents an assessment of the functional impact of the osteoarthritis.

32. I am therefore troubled by the lack of evidence before me demonstrating a genuine commitment to treatment or moderation and eventual control of the weight issue. I must therefore agree with the Respondent’s contention that this condition of osteoarthritis cannot be considered either fully treated or fully stabilised. Accordingly, no impairment rating can be assigned to it.

33. In the absence of medical evidence that is adequate and contemporaneous with the Relevant Period, regard must be had to the level of weight I can safely allocate to this Applicant’s self-reporting of her symptoms. The Guide to Social Security Law at paragraph 3.6.3.40 addresses this matter:

“Determination of the descriptor that best fits the person’s impairment level must be based on the available medical evidence including the person’s medical history, investigation results and clinical findings. A person’s self-reported symptoms must not solely be relied on. It would be inappropriate to apply an impairment rating based solely on a person’s self-reported functional history if this level of functional impairment is not consistent with the medical evidence available.” (Underlining added).

34. I endorse this view. In the absence of a report relating to the relevant period from a suitably qualified medical professional (such as, for example, an occupational therapist or orthopaedic surgeon), I have difficulty in disturbing the earlier decisions insofar as an impairment rating for the osteoarthritis is concerned.

Depression and Anxiety

35. As best as I understood the Applicant’s contention regarding these symptoms, her position was that her depression and anxiety was at the “extreme” level.

36. This contention seems primarily based on:

1. Dr Hamza’s Report of 5 March 2015;^[27]
2. Dr Hamza’s pro-forma report for BASIC Rights Qld dated 18 February 2016;^[28] and

100. The letter dated 17 March 2015 of Mr Cobus Kleynhans, clinical psychologist.^[29]

37. In his report of 5 March 2015, Dr Hamza thought:
    • the Applicant suffered from extreme anxiety and moderate depression resulting in low mood and a lack of energy;
    • these symptoms would persist for more than 24 months;
    • current treatment includes psychotherapy and anti-depressants.

38. In his report to Basic Rights Qld dated 18 February 2016, Dr Hamza confirmed the Applicant’s ongoing involvement in psychotherapy and anti-anxiety medication.

39. The clinical psychologist, Mr Kleynhans, in his letter of 17 March 2015 said:
    • he initially saw the Applicant in August 2011;
    • she suffers from major depression and anxiety;
    • that her symptoms are subject to fluctuation due to external factors;
    • she especially requires ongoing support when she presents as suicidal;
    • her psychological treatment remains ongoing.

40. In a further letter dated 2 June 2016,^[30] Mr Kleynhans thought the Applicant’s basic symptomology remained unchanged thus warranting ongoing treatment to develop her capacity to cope with daily functioning.

41. The Respondent’s medical and associated evidence looked like this:

• Both JCA reporters found this condition(s) to be fully diagnosed, treated and stabilised;
• They also both considered the functional impact from this condition(s) to be nil and thus did not allocate any impairment points to it;
• The HPAU Opinion was limited solely to the osteoarthritis condition.

42. In terms of an impairment rating for this condition, I respectfully concur with my Tribunal colleague at first review, not in terms of the quantum of impairment points, but that points should be awarded at all. Clearly, they should be. Having regard to the totality of the evidence I am of the view that the appropriate rating is 10 points under Table 5.

43. I therefore find this Applicant’s symptoms of depression and anxiety point to a moderate functional impact on her activities involving mental health function. This Applicant:
    1. does need some level of support from her husband^[31] to assist her with negotiating stairs and sloping ground and with dressing herself;
    2. gave evidence of the negative impact of her mental health symptoms upon both her interest in recreating and in maintaining a social life;
    100. told us that some of her relationships have become strained;
    4. said her capacity to maintain concentration in order to complete a task has been diminished. The example she gave was her role in doing basic accounting, bookkeeping and data entry for the independent grocery business she operates with her husband;
    5. said her general behaviour, capacity to plan and make decisions had been adversely affected.

Aside from the Applicant’s own evidence, the clinical psychologist, Mr Kleynhans,^[32] reported about her unstable mood regime and of the need for ongoing psychological treatment to assist her with daily functioning. Dr Hamza^[33] reported that this condition resulted in low mood and a lack of energy in the Applicant.

44. I therefore consider the Applicant’s depression and anxiety impairment attracts 10 points under Table 5 – Mental Health Function, of the impairment tables due to those symptoms having a moderate functional impact on her activities involving mental health function.

Other conditions

45. The remaining conditions listed in the Applicant’s claim for DSP are asthma and high blood pressure (hypertension).

46. The totality of relevant medical evidence leads me to the finding that these conditions were not capable of having impairment points allocated to them because:
    1. the asthma – while fully diagnosed was not found to be fully treated and stabilised;
    2. the high blood pressure (hypertension) – while found to be fully diagnosed, treated and stabilised, was not given any impairment points under Table 1 (Functions requiring Physical Exertion and Stamina) because it had limited impact on the Applicant’s ability to function and was well managed by medication.

Summary

47. In my view, the totality of both the expert evidence and anecdotal evidence of the Applicant (and that her husband) is not of sufficient weight for this Tribunal to award the Applicant greater than 10 points for all her stated conditions. Those 10 points are allocated under Table 5 for her Depression and Anxiety symptoms.

48. As she does not reach 20 points or more under the Tables, she does not satisfy the second of the requirements for DSP. She therefore does not qualify for DSP via this application.

Continuing Inability to Work?

49. Given that this Applicant does not reach 20 points or more at the Relevant Period, it is unnecessary to consider this question.

CONCLUSION

50. The Applicant does not qualify for DSP because her impairment only attracted 10 impairment points at the Relevant Period.

51. Accordingly, the decision under review is affirmed.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis

...................[sgd].......................................
Associate

Dated 1 November 2016

Date of hearing	29 August 2016
Applicant	In person
Advocate for the Respondent	C. Cameron
Solicitors for the Respondent	Clayton Utz

---

^[1] Exhibit 1: T documents: T4, p 68.

^[2] Exhibit 1: T Documents: T4: pp 40 – 50.

^[3] Exhibit 1: T Documents: T5: pp 101 – 109.

^[4] Exhibit 1: T Documents: T8: pp 114 - 120.

^[5] Exhibit 1: T Documents: T9, pp 124-125.

^[6] Exhibit 1: T Documents: T10, p 129.

^[7] Exhibit 1: T Documents: T11, pp 135 - 137

^[8] Exibit 1: T documents: T2, p 3 – 9.

^[9] See ss 41 and 42, and cl 3 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

^[10] See s 26(1) of the Act.

^[11] See s 5(2) of the Determination.

^[12] See s 6(1) of the Determination.

^[13] See s 6(3) of the Determination.

^[14] See s 6(4) of the Determination.

^[15] See s 6(5) of the Determination.

^[16] See s 6(6) of the Determination.

^[17] See s 6(7) of the Determination.

^[18] See s 11(1) of the Determination.

^[19] Exhibit 2: Respondent’s Statement of Facts, Issues and Contentions filed 15 August 2016, paragraph 5.5.

^[20] Exhibit 3: Statement of Allen George Boughen, dated 24 August 2016, page 1, 3^rd paragraph.

^[21] Exhibit 1: T Documents: T4: pp 84 – 94.

^[22] Exhibit 1: T Documents: T4: pp 98 – 99.

^[23] Exhibit 1: T Documents: T4: p 95.

^[24] Exhibit 1: T Documents: T4: pp 96 – 97.

^[25] Exhibit 1: T documents: T5, page 105.

^[26] Exhibit 1: T documents: T8, page 115.

^[27] Exhibit 1: T documents: T4, p 84 – 94.

^[28] Exhibit 1: T documents: T14, p 140 – 146.

^[29] Exhibit 2: Annexure C of Secretary’s Statement of Facts Issues and Contentions.

^[30] Exhibit 2: Annexure D of Secretary’s Statement of Facts Issues and Contentions.

^[31] See Exhibit 3: Statement by Allen George Boughen dated 24 August 2016.

^[32] Exhibit 2: Annexure C – Letter from Cobus Kleynhans, Clinical Psychologist dated 17.03.2015; and
Annexure D – Letter from Cobus Kleynhans, Clinical Psychologist dated 02.06.2016.

^[33] Exhibit 1: T Documents: T4, p 94.