BHLT and Secretary, Department of Education

[2014] AATA 643

[2014] AATA 643  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/5827
Re	BHLT
APPLICANT
And	Secretary, Department of Education
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	4 September 2014
Place	Brisbane

The Tribunal affirms the decision under review.

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Dr P McDermott RFD, Senior Member

CATCHWORDS

HIGHER EDUCATION – Higher Education Contribution Scheme – Education provider – removal of financial liability after census date – special circumstances not satisfied – HECS-HELP cannot be remitted – decision affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 35

Higher Education Support Act 2003 ss 36-20, 36-21, 87-1, 206-1, 209-10, 212-1, 238-10

Higher Education Support Act 2003 – Administration Guidelines 2012 Ch 3

Legislative Instruments Act 2003 s 5

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

4 September 2014

INTRODUCTION

1. In Term One in 2013 the applicant was enrolled in a Bachelor of Laws degree course at a University. She was enrolled in four courses: she passed one course but did not provide any assessment for three courses (which each have an equivalent full-time student load (“EFTSL”) value of 0.125). These three courses will be referred to as “the relevant units of study” in conformity with the terminology utilised in the Higher Education Support Act 2003 (“the Act”). On 24 July 2013 the applicant made an application to the University, which is a “higher education provider”, for the removal of financial liability for the relevant units of study. On 21 August 2013 the University made a decision to not re-credit her HECS-HELP balance for those courses. On 14 October 2013 this decision was confirmed on internal review.  The applicant has now sought review of the decision by this Tribunal.

2. As the applicant has been a victim of domestic violence, I have made a direction under

   
   

   s 35(2)(aa) of the Administrative Appeals Tribunal Act 1975 to restrict the publication of the name and address of the applicant. In light of this, I have deleted any references to names of any health professionals or the name of the University so that the applicant cannot be identified in these reasons.

   HECS-HELP ASSISTANCE

3. Section 87-1 of the Act provides the basis forHECS-HELPassistance:

   What this Part is about

   A student may be entitled to HECS-HELPassistance for units of study for which he or she is Commonwealth supported, if certain requirements are met.

   The amount of assistance to which the student may be entitled is based on his or her student contribution amounts for the units, less any up-front payments. The assistance is paid to a higher education provider to discharge the student’s liability to pay his or her student contribution amounts.

4. The Act provides that a student has a liability to repay a HECS-HELPdebt for units of study if the student is enrolled in the relevant units of study as at the census date for that unit. The census date of the relevant units of study was 19 March 2013.

   REMISSION OF DEBT

5. A person can make an application under s 36-20 of the Act to a higher education provider for the remission of a person’s HECS-HELP debt for a unit of study. 

   
   

   Subsection 36-20(1) of the Act provides that a higher education provider must determine that s 36-20 of the Act is applicable to the student where “the provider is satisfied that special circumstances apply to the person”.[1]

   [1] s 36-20 (1)(d).

   SPECIAL CIRCUMSTANCES

6. What constitutes “special circumstances” is provided by s 36-21 of the Act which provides:

   Special circumstances

   (1) For the purposes of paragraph 36-20(1)(d), special circumstances apply to the person if and only if the higher education provider is satisfied that circumstances apply to the person that:

   (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 unit of study; and

   (c) make it impracticable for the person to complete the requirements for the relevant units of study  during the period during which the person undertook, or was to undertake, the units of study.

   (2) The Administration Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines.

7. The Minister is also empowered by s 238-10(1) of the Act to make administration guidelines. Chapter 3 of the Administration Guidelines makes provision in respect of “special circumstances”:

   3.1 PURPOSE

   3.1.1The purpose of this chapter is to specify the circumstances in which a higher education provider will be satisfied that special circumstances apply to the person that:

   (a)         are beyond the person’s control (paragraph 36-21(1)(a) of the Act;

   (b) do not make their full impact on the person until on or after the census date for the unit of study in question (paragraph 36-21(1)(b) of the Act); and

   (c) make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake, the unit (paragraph 36-21(1)(c) of the Act.

   3.5 CIRCUMSTANCES BEYOND A PERSON’S CONTROL

   3.5.1 A higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.

   3.5.5 The situation referred to in paragraph 3.5.5 [sic] must be unusual, uncommon or abnormal.

   3.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE

   3.10.1 A higher education provider will be satisfied that a person’s circumstances did not make their full impact on the person until on or after the census date for a unit of study if the person’s circumstances occur:

   (a)         before the census date, but worsen after that day; or

   (b) before the census date, but the full effect or magnitude does not become apparent until on or after that day; or

   (c)         on or after the census date.

   3.15 CIRCUMSTANCES THAT MAKE IT IMPRACTICABLE FOR THE PERSON TO COMPLETE THE REQUIREMENTS

   3.15.1 A higher education provider will be satisfied that a person’s circumstances make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake, the unit if circumstances such as the following occur:

   (a) medical circumstances. For example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying; or

   (b) family/personal circumstances. For example, death or severe medical problems within a family, or unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies; or

   (c) employment related circumstances. For example, where a person’s employment status or arrangements have changed so that the person is unable to continue his or her studies, and this change is beyond the person’s control; or

   (d) course related circumstances. For example, where the provider has changed the unit it had offered and the person is disadvantaged by either not being able to complete the unit, or not being given credit towards other units or course.

   A person is unable to complete the requirements for a unit if the person is unable to:

   (a) undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements in order to meet their compulsory course requirements; or

   (b)         complete the required assessable work; or

   (c)         sit the required examinations; or

   (d) complete any other course requirements because of their inability to meet (a),(b) and

   (c)         above.

8. The Administration Guidelines are a legislative instrument as they are of a legislative character and made in the exercise of a power delegated by the Parliament.[2] 

   
   

   Subsection 36-21(2) of the Act provides that a decision under that section must be in accordance with the Administrative Guidelines.

   [2] Legislative Instruments Act 2003, s 5.

   REVIEWABLE DECISION

9. The decision concerns the application of s 36-20 of the Act which provides for the removal of financial liability for a unit of study. Section 206-1 (Item 1A) of the Act provides that a decision will be reviewable if the decision made by the higher education provider pronounces that s 36-20 of the Act does not apply to a person. A person whose interests are affected by a ‘reviewable decision’ may request a reconsideration of the ‘reviewable decision’ under s 209-10 of the Act. A “reviewable decision” that has been reconsidered may be reviewed by this Tribunal under section 212-1 of the Act.

   ISSUES

10. I have to determine whether, in respect of the relevant units of study, there are “special circumstances” which:

    (a)        were beyond the control of the applicant; and 

    (b) did not make their full impact on the applicant until on or after the census date; and

    (c) which made it impracticable for the applicant to complete the requirements for the relevant units of study during the period in which she undertook these units.

    CIRCUMSTANCES OF APPLIANT

11. At the hearing the applicant gave evidence of her circumstances before and during Term One. The applicant outlined a number of matters of concern to her. Some of these events occurred before the census date. She states that she has lost sleep after her friend went missing on 9 February 2013.

12. The applicant has had a long history of back pain. On 15 January 2013 the applicant was involved in a motor vehicle accident which has caused her neck, should and back pain. She has been provided with a number of medical certificates. One certificate dated

    
    

    18 April 2013 certifies that she presented to the practice on 16 January 2013 after the accident. One certificate from her medical practitioners which certify that she was “unfit for University from 18/3/13 to 20/02/13 inclusive”. Another certificate dated 3 May 2013 certifies that her whiplash injury has not resolved and that she requires further physiotherapy.  One medical practitioner who gave evidence thought that her situation may have worsened after the census date.  The applicant also complains of the financial loss in the family business since the global financial recession. Since 1993 she has been a victim of domestic violence for that she sought counselling from a counsellor of Lifeline on 8 to 10 October 2010, and from 25 September 2013. The applicant did not seek counselling in Term One after the Census Date. 

13. The applicant in her statement of special circumstances, which was attached to her application dated 24 July 2013, outlines a number of matters which she submits to be special circumstances. The first circumstance is her statement: “I was unaware that the census date meant that I would have to formally drop the classes that I was unable to do”. She states that when she phoned the help desk in February or March but was “not advised during [the] long process about the ramifications of not dropping the courses before any census date”. The applicant also tendered evidence form the lecturers of the relevant units of study which verify that she did not provide any assessment for those units.

    CONSIDERATION

14. However, to qualify for remission of the HECS-HELP debts there must be “special circumstances”, and decision-makers such as this Tribunal must establish that there are special circumstances in terms of the Administration Guidelines.

15. I have to consider whether the relevant circumstances: were beyond the control of the applicant,

    make made their full impact on the applicant until on or after the census date for the unit of study.  In my opinion the applicant does not satisfy this requirement of

    
    

    s 36-21 (1)(a) of the Act.

16. I cannot accept that the applicant was unaware of the meaning of the term “census date”. On 28 February 2013 the applicant was sent an email by the University which advised her of important dates including the census date. On 8 March 2013 the applicant completed an online orientation program in which she correctly answered the following statement about the census date: “Census date is the last day you can drop courses without any financial penalty”.  On 12 March 2013 a “Census Date Reminder” email was sent to the applicant. On 15 March 2013 another email was sent to the applicant to advise her of the forthcoming census date. I do not consider that it is plausible that the applicant did not appreciate the significance of the census date. The situation is that the applicant was enrolled in subjects for which she did not submit any assessment. She was aware that she was enrolled in the relevant units of study as she admits that her activity log reveals that she visited the site for those subjects of total of 10 times (six times before and four times after the census date).  The fact that she visited the site after the census date indicates that she was aware of her continued enrolment.

17. I am not satisfied that the circumstances with respect to the relevant units of study were “beyond her control” within the meaning of s 36-21 (1)(a) of the Act. There is no medical evidence that the applicant was unable to complete the relevant units of study after the census date. In all strictness, it is not necessary for me to consider when the relevant circumstances made their full impact on the applicant, and whether they made it impracticable for her to complete the course. However, I will give my observations on these matters.

18. I will comment whether the circumstances made their full impact on the applicant until on or after the census date for the relevant units of study.  In my opinion the applicant does not satisfy this requirement of s 36-21 (1)(b) of the Act. This is for the reasons that after the census date the applicant was able to successfully pass one of the courses for which she was enrolled in Term One.

19. I next consider whether the circumstances make it impracticable for the person to complete the requirements for the relevant units of study during the period during which the person undertook the relevant units of study. This is a requirement of s 36-21 (1)(c) of the Act which must be satisfied for the applicant to succeed in this application. On my assessment of the evidence, the applicant does not satisfy s 36-21 (1)(c) of the Act. This is again because the applicant was able to attain a satisfactory pass for a course in Term One.

20. The evidence before me does not come within any of the matters outlined in the Administration Guidelines which constitute special circumstances.

    CONCLUSION

21. The applicant has not shown that there were special circumstances in relation to the relevant units of study. Accordingly, the HECS-HELPdebt that was incurred with respect to those units cannot be remitted under s 36-20 of the Act.

    DECISION

22. I affirm the decision under review.

I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

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Associate

Dated 4 September 2014

Date(s) of hearing	30 July 2014
Applicant	In person
Solicitor for the Respondent	Shane Maundrell, Principal Government Lawyer