ALEXANDRA CROWELL and SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE & TRAINING
[2006] AATA 267
•9 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [200] AATA 267
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/643
GENERAL ADMINISTRATIVE DIVISION ) Re ALEXANDRA CROWELL Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE & TRAINING
Respondent
DECISION
Tribunal Dr EK Christie, Member Date9 March 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review. Mrs Crowell has incurred a HECS semester debt for two course units of her Bachelor of Journalism degree debt. The HECS debt may not be remitted under the “special circumstances” provision of the Higher Education Funding Act 1988. This means Mrs Crowell’s application for review is unsuccessful.
The Tribunal raises the possibility of the Act of Grace policy having application in the factual circumstances of Mrs Crowell’s case.
...........[Sgd]......
EK Christie
Member
CATCHWORDS -
HIGHER EDUCATION – HECS debt –– power to remit HECS debt in special circumstances
Higher Education Funding Act 1988 s 106L
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Secretary, Department of Education, Training and Youth Affairs v Ellem [2000] FCA 695.
Thomas and Department of Employment and Youth Affairs [2000] AATA 784
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Dranichnikov v Centrelink [2003] FCFCA 133
Dean and Department of Education Science and Training [2005] AATA 586.
WRITTEN REASONS FOR ORAL DECISION
22 March 2006 Dr EK Christie, Member 1. This is an application for a review of a decision of a delegate of the Secretary made on 13 September 2005. The delegate’s decision was to not remit a HECS semester debt under the “special circumstances” provision of the Higher Education Funding Act 1988. The HECS debt was for two course units towards a Bachelor of Journalism degree that Mrs Crowell had enrolled in for the 2004/05 Summer Semester period at the Queensland University of Technology.
2. The evidence before the Tribunal comprised the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) [Exhibit 1] and the various exhibits lodged by the parties.
3. The applicant represented herself at the hearing. The respondent was represented by Mr D O’Brien, Solicitor, Minter Ellison Lawyers.
Issues Before The Tribunal
4. The only issue for the Tribunal to decide was whether the HECS debt could be remitted under the “special circumstances” provisions of the Higher Education Funding Act.
The Tribunal’s Decision Making Powers
5. There is only one decision possible in this application for review: whether the HECS debt can be remitted.Accordingly, the question for the determination of the Tribunal is whether the decision under review is the correct one.
[See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68]
6. In this application for review, the Tribunal considers all the evidence and information before the Tribunal as at the date of the hearing - to the extent those facts are relevant to the decision by reference to the subject matter, scope and purpose of the legislation pursuant to which the discretion is conferred.
[See Haidar v Secretary, Department of Social Security (1998) 157 ALR 359 at 367]
Facts
7. On the basis of the evidence before it, the delegate gave the following reasons for dismissing the appeal to have the HECS debt decision remitted [T11, Folio 37]:
“You made an effort to withdraw from the units AMB201 and BSB 126 on 21 October 2004 and your letter indicates you have a full understanding of the requirement to withdraw by specified dates. Nevertheless, you failed to ensure that your withdrawal was completed correctly.
Your personal circumstances continued to deteriorate from then until after the census date (6/12/04) and hindered your capacity to either complete the units or withdraw from them.”
Statutory Requirements And Case Law
8. The relevant legislation is the Higher Education Funding Act 1988 [“the Act”]. The Tribunal has applied the following statutory requirements and legal principles in its interpretation of the law in its consideration of the outcome of Mrs Crowell’s factual situation.
9. The application of the “special circumstances” provision in the Act is a key issue in dispute for the Tribunal to decide. Section 106L of the Act (“Power of Secretary to Remit Debt in Special Circumstances”) sets out the circumstances in which the Secretary may remit a HEC semester debt:
(a) The relevant provisions of section 106L(1) in Mrs Crowell’s case are:
“(1)The Secretary may, in writing, remit the whole or part of a person’s HEC semester debt…if:
(a)the person has not completed the course requirements for his or her course of study in respect of a semester during the semester or during the year in which the semester occurred; and
(b)the Secretary is satisfied that special circumstances apply to the person (see subsection (3)); and …
(b)Section 106L(3) sets out the statutory requirements for satisfying “special circumstances”:
“106L(3)For the purposes of this section, special circumstances, in relation to a person, include circumstances that the Secretary is satisfied:
(a)are beyond the person’s control; and
(b)do not make their full impact on the person until on or after the census date for the course of study for the semester…; and
(c)make it impracticable for the person to complete the course requirements for the course of study for the semester during the semester or during the year in which the semester occurs…[Emphasis added].
(c)Section 106L(3A) allows for the Secretary to issue policy guidelines with respect to the provisions in s 106L(3)(a), (b) and (c) of the Act.
10. All three requirements in s 106L(3)(a)(b) and (c) are joined by the conjunction “and”. Consequently, all three requirements must be satisfied for Mrs Crowell to succeed under the “Special Circumstances” provision of the Higher Education Funding Act: Secretary, Department of Education, Training and Youth Affairs v Ellem [2000] FCA 695.
11. Given that s 106L (3) qualifies the three requirements with the term “include”, the Secretary is not restricted to its consideration of the meaning of “special circumstances” to these requirements only. Circumstances other than the three requirements prescribed in s 106L(3), as well as the Departmental Policy guidelines, may also be considered as “special circumstances” warranting consideration of remission of the debt: Thomas and Department of Employment and Youth Affairs [2000] AATA 784.
12. In this regard, the common law meaning and application of the expression “special circumstances” has also been considered by the Federal Court and the Tribunal on many occasions in the context of overpayments of social security entitlements and the Social Security Act 1991. The relevant legal principles that have emerged, over time, that have been applied to provide a meaning for “special circumstances” under the Social Security Act, can be summarised as follows:
(a)“The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. … This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.”
[See Re Beadle and Director-General of Social Security (1984) 6 ALD (at 30]
(b)“To some extent the question whether there were special circumstances must depend on how it came about that the error occurred …
“there will be a requirement that the circumstances are such that takes the case out of the ordinary” (Emphasis added).
[See Dranichnikov v Centrelink [2003] FCAFC133]
13. In Dean and Department of Education Science and Training [2005] AATA 586, the Tribunal undertook an analysis of cases decided by the Tribunal as to the circumstances which fall within the meaning of “special circumstances” because of the impacts of a medical condition on a social security recipient. The Tribunal concluded “with respect to ‘special circumstances’, the application of the law in cases decided by the Tribunal involves a consideration of the impacts of the medical condition on the Social Security recipient’s capacity to make rational decisions in managing their day to day affairs”[Emphasis added].
14. Beadle’s case makes it clear that the medical condition itself is not in itself a “special circumstance”. The analysis of case law in Dean’s case requires an assessment of the impacts of the medical condition [including any medication] on the person’s capacity to make rational decisions in managing their day to day affairs. In turn, such an assessment is necessarily the subject of expert medical opinion e.g. a Treating GP.
EXAMINATION OF THE EVIDENCE
15. Mrs Crowell stated that a significant issue relating to her failure to withdraw by the HECS census date arose because of delays by the ADF in responding to her partner’s application for a “Recognition of De Facto Marriage”.Her partner had been transferred for recruit training in Adelaide in September 2004. By not having ADF recognition of their marital state, the financial consequences (e.g. entitlements associated with an interstate transfer) were limiting. In turn, the limitations so imposed would be a key factor in any decision for her (and their daughter) to move interstate at this time.
16. In a letter dated 9 December 2004 (T7, Folio 31), the ADF informed her partner that his application for “Recognition of De Facto Marriage” was approved. This meant she could accompany her husband and for their interstate travel costs to be covered. However, this approval by the ADF on 9 December 2004 was after the HECS Census date (6 December2004).
17. Mrs Crowell said that, on 21 October 2004, she had tried to withdraw from the two courses which she had enrolled in at the QUT Summer School for 2004/05. However, at this time she was not “100% sure” whether, or not, to enrol in these courses, because of the uncertainty attached to her partner’s interstate transfer in the ADF. She said that she was aware that her withdrawal did not go through at this time – but did not worry about it. She thought the HECS Census date was 21 January 2005.
18. She stated that during October-November 2004, her infant daughter suffered chicken pox and then, later, a viral illness. This was a further source of concern for her.
19. Because of the uncertainty associated with her partner’s interstate transfer with the ADF and her child’s illness, she said that she became stressed out and had difficulty coping with what was happening. She had spoken to a friend (a registered nurse) about her stressed state.
20. Mrs Crowell said that she had also tried to withdraw from both summer school courses following her return from Adelaide in late November 2004. She said that she thought she had withdrawn but that was not the case. She described her life at this time as a “shambles”.
21. During cross-examination, Mrs Crowell conceded that she had not checked a QUT Statement of Account Summer Program Fees 2004/2005 for the two courses that she had enrolled in (Exhibit 5). This statement was issued on 23 November 2004 and included the confirmation of her enrolment in both courses as well as a reference to the HECS Census date (6 December 2004).
22. Later, Mrs Crowell acknowledged that, as a student, she was aware of her responsibilities and obligations with respect to enrolment.
23. In response to a Tribunal question, Mrs Crowell said that she had not seen any medical practitioner during the period September – December 2004 when she was complaining about stress.
CONSIDERATION OF THE ISSUES
24. The evidence and information before the Tribunal clearly indicates that the HECS Census date for the two courses that Mrs Crowell was enrolled in for the QUT Summer School was 6 December 2004. This information was accessible (information on the QUT Web Page, Exhibit 6) and/or available (HECS Information Booklet 2004, T20) to Mrs Crowell. In addition, the QUT “Statement of Account – Summer Program Fees 2004/05” issued on 23 November 2004 – 2 weeks before the HECS Census date, provided for further confirmation.
25. The relevant period for the Tribunal to consider the factual circumstances in understanding how the problem of failing to withdraw from the two courses by the HECS Census date is September to December 2004.
26. The case Mrs Crowell presented is essentially founded on factors she believes to be “out of her control”. Firstly, uncertainty in whether she could move interstate to be with her partner who had been transferred to Adelaide with the ADF in September 2004; such a decision was dependent on their application for “Recognition of a De Facto Marriage” being approved by the ADF. However, such approval came on the 9 December 2004 – 3 days after the HECS Census date.
27. In addition, this uncertainty awaiting the outcome of the application to the ADF was exacerbated with the illness of her infant daughter (chicken pox; viral illness). Mrs Crowell described her emotional state, at this time, as being “stressed” and a “shambles”.
28. A friend, Kerrie Lee Lanham (a registered nurse) described Mrs Crowell’s emotional state over this time period (Exhibit 4) as follows:
(a)16 September 2004: “…under a lot of stress, but not at an unmanageable level”
(b)30 November 2004: “…seemed to be coping fairly well”
(c)9 December 2004: “…she was beginning to feel stressed again”.
(d)11-13 December 2004: “…anxiety levels became so high I recommended that she make an appointment with a GP because it was severely affecting her mental state…”
29. In terms of understanding the factual circumstances that have resulted in the situation that Mrs Crowell did not withdraw from the two enrolled courses at the QUT Summer School 2004/05 by the HECS Census date, the Tribunal makes the following conclusions:
(a)That Mrs Crowell had tried to withdraw from both courses on 21 September 2004 and was aware that the withdrawal did not go through;
(b)Mrs Crowell was aware of the requirements to withdraw by a specified date for HECS as well as her responsibilities for enrolment in a HECS Course (T12, Folios 28, 29).
(c)Mrs Crowell had not checked the QUT “Statement of Account – Summer Program Fees 2004-2005”, issued on 23 November 2004 – 2005”, issued on 23 November 2004 – the week before the HECS Census date, which listed her existing enrolment in the two courses; and
(d)Mrs Crowell’s evidence that she believed the HECS Census date to be 21 January 2005 – notwithstanding the information available and/or accessible to her (see para 24).
30. The Tribunal finds that the above factors do not represent the statutory or legal meaning of “special circumstances” as they are not circumstances “beyond her control” or circumstances that were either “unusual”, “uncommon” or “exceptional” – or sufficient to take Mrs Crowell’s case “out of the ordinary”.
31. Next, the Tribunal considers Mrs Crowell’s claim of stress associated with the uncertainty attached to her life following the interstate transfer of her partner in September 2004; there were delays by the ADF determining their claim for “Recognition of De Facto Marriage”. In addition, her stress was exacerbated by the illness of her infant daughter. Together, these sources of stress were claimed by Mrs Crowell to have an adverse impact on her emotional and anxiety state. In turn, in this stressful state her life was a “shambles”. Kerrie Lee Lanham has provided observations of Mrs Crowell’s symptoms at this time (para 28).
32. The problem with Mrs Crowell’s evidence, in this regard, is that there is no medical opinion evidence before the Tribunal that identifies the medical condition (including any medication) that Mrs Crowell may have suffered at this time; and, most importantly, no medical opinion on the impacts of this condition on Mrs Crowell’s capacity to make rational decisions to manage her day to day affairs (Dean’s case). During the hearing the Tribunal sought to exert its inquisitorial powers to pursue this issue with Mrs Crowell’s medical practitioner. However, this approach was not possible as Mrs Crowell’s evidence was that she did not see any medical practitioner during this period. Without such medical opinion, the Tribunal cannot address this issue objectively. Accordingly, based on the available evidence and information, the Tribunal can make no other conclusion than to find that Mrs Crowell’s “stress/anxiety” state in September – December 2004 does not justify the description of “special circumstances”. The evidence and information before the Tribunal cannot lead to a conclusion that Mrs Crowell’s “stress/anxiety” state represented circumstances “beyond her control” and so led to her not withdrawing by the HECS Census date. Nor, based on the evidence and information before the Tribunal, can it be concluded that the “stress/anxiety state” represent circumstances that were “unusual”, “uncommon” or “exceptional” or to take her case “out of the ordinary”.
33. Whilst this outcome may seem harsh, it would be more appropriate to describe the outcome as unfortunate. The Higher Education Funding Act gives the Tribunal no other option than to make such a finding, given that there is no medical opinion evidence before the Tribunal where there has been an assessment of the nature of any medical condition that Mrs Crowell suffered, in relation to stress or anxiety, during the period October to December 2004 - or the impacts of the medical condition (including any medication) on her capacity to make rational decisions in managing her day to day affairs during this period of time. There is no discretion in the legislation for the Tribunal to make any other decision based on the application of the relevant statutory provisions (and case law principles) that prescribe remittal of a HECS debt, based on the facts before the Tribunal.
34. However, the Tribunal does raise for consideration by Mrs Crowell and the Department of Education, Science and Training, the Commonwealth Policy Guideline, “Act of Grace Payments”.
35. The Commonwealth Policy Guideline for Act of Grace Payments [Attachment C to Finance Circular 2000/01] states as follows:
§ “The Australian Government may provide discretionary assistance in some cases by act of grace payments, or by waiving debts owed to the Australian Government. In general, this assistance may be granted where it is considered that the Australian Government has a moral responsibility to provide assistance, rather than a legal responsibility.
§ This may be because of an action, or failure to act, by an Australian Government agency. Such an obligation may also arise because of the unforeseen and anomalous operation of a federal law or program (Emphasis added).
§ However, the act of grace and waiver provisions are not intended as a means to correct anomalies in federal law or administration that should be rectified by other means. Nor are they intended as an alternative to settlement of legal claims.
§ The conditions under which act of grace claims are determined can broadly be characterised as where the Commonwealth considers it has a moral obligation, as opposed to a legal obligation, to provide redress because (Emphasis added):
(a) the Commonwealth’s direct role, acts or omissions in relation to the particular case has caused an unintended or inequitable result for the individual or entity concerned;
(b) the application of Commonwealth legislation has produced a result that is unintended, anomalous, inequitable or otherwise unacceptable in a particular case (Emphasis added); or
(c) the matter is not covered by legislation or specific policy, but it is intended to introduce such legislation or policy and it is considered desirable in a particular case to apply the benefits of the relevant provisions prospectively.
§ The act of grace power is a unique discretion given to the Minister for Finance and Administration to make payments to persons who may have been unintentionally disadvantaged by the effects of Commonwealth Government legislation, actions or omissions and who have no other viable means of redress.
§ The act of grace power should not be seen as an alternative to other viable avenues of redress but rather as a remedy that may only be applied in special circumstances to ensure consistency and equity in the impact of Government activities.
§ The authority to act of grace payments is provided by s33 of the Financial Management and Accountability Act 1997 (the FMA Act), under which the Minister for Finance and Administration, or the Minister’s Parliamentary Secretary, may authorise a payment if he or she considers it appropriate to do so because of special circumstances
§ Act of grace payments can arise from any sphere of Commonwealth administration. As implied by s 33(1) of the FMA Act, the Minister has an unfettered discretion to determine each act of grace request on a case by case basis and as such, it is not appropriate to specifically define special circumstances.”
36. In relation to the Departmental “Act of Grace Policy”, the Tribunal considers that there is no issue for a claim under the Departmental Policy, “Compensation for Detriment Caused by Administrative Error”, as there is no issue of departmental administrative procedures that would have applied to Mrs Crowell’s circumstances.
37. In any external consideration of the possibility for an Act of Grace Payment, due regard must be given to the following aspects of the evidence and information before the Tribunal:
(a)A Tribunal finding that Mrs Crowell was an honest and credible witness who answered all questions asked of her in a forthright manner;
(b)That the stressors in Mrs Crowell’s life during September – December 2004, as stated in her evidence, were real:
(c)That Mrs Crowell suffered some form of “anxiety/stress” state during the entire period. The symptoms varied over time becoming more adverse in December 2004 (the evidence of Mrs Crowell; information on symptoms provided by Kerrie Lee Lanham).
(d)The lack of any medical opinion evidence before the Tribunal to provide a diagnosis of the medical condition suffered – as well as its impacts on the ability of Mrs Crowell to make rational decisions to manage her day to day affairs during this period;
(e)Mrs Crowell’s evidence that she did not seek any medical consultation or treatment during this period. As a result, the Tribunal was unable to exert its inquisitorial powers and proceed to obtain such an opinion from a treating GP – a pathway the Tribunal has pursued in “similar fact” cases in the past;
(f)The observations by the Tribunal on Mrs Crowell’s personality and manner, whilst giving sworn evidence were indicative of a person having a stoic personality aimed at overcoming personal difficulties encountered in life with minimal intervention from others;
(g)The consequences of Mrs Crowell’s stoic personality and failure to seek any medical intervention has produced a situation in which there is uncertainty in the evidence and information before the Tribunal. That is, in terms of the actual time when the cumulative impacts of the stressors experienced over the period September – December 2004 may have had their full impact on her emotional behaviour and so led to a special circumstance that may have adversely affected her capacity to make rational decisions in relation to withdrawing from the two courses by the HECS census date (Emphasis added); and
(h)It could not have been reasonably foreseen by Mrs Crowell that a failure to seek medical intervention, during this period, may have led to the predicament in which she has now found herself (Emphasis added).
38. In relation to the Act of Grace policy, the Tribunal considers that conclusions as to how the HECS debt has arisen, in accordance with the “special circumstances” provisions of the Higher Education Funding Act, in Mrs Crowell’s factual circumstances, may have led to a result that is an “unintended anomalous, inequitable, unjust or otherwise unacceptable result”. On consideration of the overall circumstances, it may even lead to a conclusion “that there is a moral obligation on the Commonwealth to make a payment”.
39. The Tribunal emphasises that it has no power whatsoever to order that an Act of Grace Payment be made to Mrs Crowell. The process for such a payment is for Mrs Crowell to make a claim to the Department of Education, Science and Training for an Act of Grace payment and to request that her claim be assessed under the specified eligibility criteria. The final authority to grant an Act of Grace payment does not rest with the Tribunal, but the Minister for Finance or their appointee.
40. For all of the above reasons, the Tribunal concludes that the HECS debt may not be remitted under the “special circumstances” provision of the Higher Education Funding Act 1988.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: Jeff Mills
Legal Research Officer
Date/s of Hearing 9 March 2006
Date of Decision 9 March, 2006
Date of Written Reasons 22 March 2006
The Applicant was unrepresented
For the Respondent Mr D O’Brien, Minter Ellison Lawyers
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