CHRISTOPHER WALLIS and SECRETARY, DEPARTMENT OF INDUSTRY, INNOVATION, CLIMATE CHANGE, SCIENCE, RESEARCH AND TERTIARY EDUCATION
[2013] AATA 256
[2013] AATA 256
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4422
Re
CHRISTOPHER WALLIS
APPLICANT
And
SECRETARY, DEPARTMENT OF INDUSTRY, INNOVATION, CLIMATE CHANGE, SCIENCE, RESEARCH AND TERTIARY EDUCATION
RESPONDENT
DECISION
Tribunal PROFESSOR RM CREYKE, SENIOR MEMBER
Date 26 April 2013 Place Canberra The decision under review is affirmed.
........................................................................
PROFESSOR RM CREYKE, SENIOR MEMBER
Catchwords
HIGHER EDUCATION – Student assistance – whether ‘special circumstances’ apply – whether Administration Guidelines constitute government policy for subjects with a pre-1 January 2012 census date
Legislation
Administration Guidelines 2012 (Cth)
Higher Education Support Act 2003 (Cth) sections 79-1, 79-5, 238-10
Student Learning Entitlement (Repeal) Instrument 2011 clause 1(iii) and (iv).
Student Learning Entitlement Guidelines
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Knee and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 392
Maxwell v Murphy (1957) 96 CLR 261
Re Palombo and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 564
Re Rix and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 742
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
26 April 2013
Mr Christopher Wallis is a student at Flinders University, SA, where he has enrolled in the course leading to a Bachelor of Government and Public Management in the Faculty of Social and Behavioural Sciences.
In first semester 2011, he enrolled in three courses but withdrew from those courses after the census date of 31 March 2011. Nonetheless, on 20 July 2011 he sought re-crediting of his Student Learning Entitlement (SLE) for the three courses under the Higher Education Support Act 2003 (Cth) (Act) s 79-1(1) and remission of his debt raised on the ground of special circumstances in accordance with the Act.
On 17 August 2011, Flinders University notified Mr Wallis that his application had been rejected. Mr Wallis sought reconsideration of the decision, but it was affirmed on 13 September 2011. On 14 October 2011, Mr Wallis sought further review by the Tribunal.
On 25 February 2013, a hearing took place in Canberra.
Background
Mr Wallis has been a student at Flinders University since 2009. He enrolled in eight units of study in 2009 for which he obtained one high distinction, one credit, four pass marks and withdrew from the remaining two courses. In 2010, he enrolled in six units of study of which he passed two, and withdrew from the remainder. In 2011, he again enrolled in six units of study but withdrew from his three first semester courses with a fail mark for those courses since he had withdrawn after the census date. No mark is listed against the remaining three units of study for 2011.
The Australian Government was providing financial support to Mr Wallis under the Student Learning Entitlement Scheme provided under the Higher Education Support Act 2003 (Cth) (Act). That support had been provided to Mr Wallis for his units of study for first semester 2011.
Flinders University key dates were notified on the University website and they were cross-references to the website ‘important dates’ site in the course outline for International Business Context BUSN 2019. For 2011, semester 1, the key dates included the census date of 31 March 2011, which is the last date by which students may withdraw from units of study without financial penalty, including ‘consuming of Student Learning Entitlement (SLE)’, and Friday 13 May 2011 was the last day to withdraw from a unit of study without a failure (WN) being included on a student’s transcript. Mr Wallis withdrew from his three courses on 12 June 2011.
Mr Wallis has Attention Deficit Hyperactivity Disorder (ADHD), sometimes shown as Adult Attention Hyperactivity Disorder (AAHD). Dr John Govan, a lecturer in psychiatry at Flinders University, who has been treating Mr Wallis since 2009, confirmed by letter dated 19 July 2011 that he suffers from the condition, and that his secondary education had been affected because he was not taking medication. Dr Govan also reported in a letter dated 1 August 2012, that Mr Wallis went to six primary schools, and he was required to repeat years 11 and 12 when he was at College. Dr Govan said, in supporting his request for special consideration: ‘He has had much difficulty coping with the ADHD since he went to Flinders University from 2009’.
In 2011, Mr Wallis had enrolled in three units: International Business Context; Political Economy of the Asia-Pacific Region; and The Politics of the Australian Welfare State. On 20 July 2011, Mr Wallis lodged an application for a remission of his debt in relation to the three units.
Mr Wallis said that he had volunteered with one other student to undertake the first tutorial exercise. He claimed his fellow student did not provide useful assistance and the pair received a fail mark. Following this outcome, Mr Wallis had approached the topic coordinator and lecturer in the unit who also conducted the tutorials which Mr Wallis was assigned to attend (the lecturer):
I then told him I had ADD and asked for consideration by way of allowing me to do the presentation again – preferably not with/not just with [other student] because I hadn’t done one before and she was no help – and even though he had offered us to redo the presentation before he said he was unable to act on it – in spite of the new information: ‘to give me special consideration would be unfair to other students’, that resubmission was ‘a one time only deal because you were first’ and…‘you’ll have to get a disability action plan’.
This situation resulted in me somewhat overreacting: banging the projector glass with a closed first little finger down, explaining ‘how is my condition fair on me?’, throwing my notes at him and leaving. [T31, 34] This I am not proud of although I must stress I have never in any way exhibited violence at university with anyone before or since then in my four years here.
Subsequently there was an email exchange between Mr Wallis and the lecturer concerning presentation and submission of written material. Weekly summaries had to be submitted in person, but, despite reminders by the lecturer by email (9 March 2011, 5 May 2011, 20 May 2011) and in his recollection orally (15 March 2011, 22 March 2011, 5 May 2011) that electronic submissions would not be marked, Mr Wallis continued to submit his weekly summary by that medium. An email from Mr Wallis to the lecturer on 22 March ended with a request for information ‘how are my dot point chapter summaries? I forgot to put a bibliography on them too, does this matter’. The lecturer did not reply to this email.
In an email dated 23 March 2011, following a rejection by the lecturer of a medical certificate provided by Mr Wallis in response to a poor grade given for the first item of assessment in March 2011, the lecturer told Mr Wallis that he could not act on the certificate unless Mr Wallis had talked to the University’s Disability Officer to seek a disability access plan. In reply, on 23 March 2011, Mr Wallis said
I don’t want special considerations for a disability, I want extentions for my medical condition. I don’t want resubmission when ive done something silly…[o]r have an outburst because I am being treated badly for being disruptive. Even though these could be seen as resonable for someone with add [ADD], these considerations would be a waste of both of our efforts, as they do not represent real world responces. I need to learn to work without considerations, as a dyslexic needs to deal with word ordering. Because ultimately we are both not going to tell our employeers. Will this be good for extentions?
The lecturer did not reply to this email.
The medical certificate, by Dr Chad Brunner, Wakefield Street Family Practice, dated 27 January 2011, addressed: ‘To Whom it May Concern’ said ‘Mr Wallis is a regular patient @ this surgery. He has been diagnosed with ADHD, for which he sees a psychiatrist and takes prescribed medication. Despite these measures, he will require on occasion consideration to be given to granting extensions for work due, owing to the severe, intrusive nature of his illness’. Mr Wallis had provided this certificate to the lecturer on 22 March 2011.
In response to Mr Wallis’s email of 23 March 2011, by email the same day, the lecturer said ‘Once again, as I outlined yesterday, this does not come to me. You need to take it to the University’s disability officer if you are requesting special consideration’. The Flinders University policy was that if a student wished to claim special consideration for a disability, the process was to visit the Disability Advisor, and seek their assistance in the development of a plan which would assist the student to manage their study in light of their disability. Mr Wallis had been reminded of this policy by the lecturer but he did not attend an appointment until July 2011, that is, after the end of semester.
Mr Wallis said on 23 March 2011, following this interchange, he attempted to transfer tutorials but apparently he had no response from the lecturer to his request. According to the course outline for the unit he could only transfer if he received approval from the lecturer. Mr Wallis continued to attend tutorial classes by the lecturer. However, he only attended five of the ten tutorials. He attended a tutorial with another tutor one week, although he had not obtained permission to do so. In accordance with instructions in the course outline, a student had to attend nine of the tutorials in order to pass the topic.
The course outline for the units Mr Wallis was studying stated:
A student with a disability, impairment, or medical condition who seeks reasonable adjustments in the teaching or assessment methods of a topic on the basis of his/her disability may make a request to the Topic Co-ordinator or the Disability Advisor as soon as practicable after enrolment in the topic. Any such reasonable adjustments must be agreed in writing between the student and the Topic Co-ordinator and must be in accordance with related University policy.
Mr Wallis provided no evidence that he had sought ‘reasonable adjustments’ in accordance with this policy in any previous units of study. He noted in submissions that in previous years’ classes, teachers had made some informal concessions in relation to his assessment obligations. Mr Wallis’s evidence was that he did not want ‘special considerations for a disability’. It was confirmed by the Dean of the Business School by email dated 26 May 2011, that Mr Wallis did not have a disability access plan. This was in response to a request for assistance from the lecturer for advice about handling Mr Wallis.
An email from the lecturer to Mr Wallis prior to March 2011 confirmed that Mr Wallis had been advised that a weekly summary of the chapter for the week had to be handed in to the lecturer. On one occasion in March 2011, the lecturer had indicated, despite the fact that Mr Wallis had not handed the material up on time, that he would accept the summary if Mr Wallis produced it at his lecture the next day. He also indicated that if the student could not hand it to him, the student could put the material under his door.
Mr Wallis submitted that the different forms of communication in the assessment outline had confused him and this had confirmed ‘my misinterpretation of [the lecturer’s] reply documented in’ the email exchange in early March 2011. He said ‘In a rush I misinterpreted [the lecturer’s] reply to mean that he was saving the environment by deleting the email, there was no wrath, hence I assumed the email submission was OK, or I could also give him hard copies of the weekly summaries in lectures’. For example, in an email to the lecturer dated 5 May 2011, sent at 2.13am, Mr Wallis said ‘just handing in my weekly summery Is it this you wanted a hard copy of? Or was it assignments?’ The lecturer’s reply at 9.51am that day was ‘Weekly summaries – hardcopy, assignment – email’. However, he also noted in his submission that in the first tutorial in the unit he had seen ‘other students handing up hard copies of weekly summaries…and asked if this was necessary – which [the lecturer] informed me it was’.
Mr Wallis did not hand in the summary on the next day. On 9 March 2011, Mr Wallis emailed the lecturer to explain that as he had no credit for printing he had been unable to print off the summary so he emailed the summary instead. The lecturer, in an email dated 8 August 2011, confirmed that no chapter summary was provided for that week. He said, to the best of his knowledge, no summary was handed to him on one or two more occasions prior to 20 May 2011.
Mr Wallis claimed that his studies were progressing satisfactorily until the lecturer advised him that he had not accepted or marked weekly summaries sent electronically by Mr Wallis. The summaries were worth 25 per cent of the mark for the topic. The email, dated 20 May 2011, from the lecturer said: ‘You get no marks for handing up your summaries electronically. Hard copies can be given to me in person or put under my office door. You get no marks for attending a tute you are not scheduled for. This means you have missed three tutes so far this semester’. The course outline for the unit stated for the second item of assessment: ‘students are required to hand-up a ‘point form’ summary of the chapter [for the week’s tutorial] for each week’ (emphasis added) with commentary. By contrast for the first assessment item, the tutorial presentation and individual written answers the outline stated that ‘The individual written answers should be emailed as a Word document attachment to your tutor for assessment within one week of your presentation’ (emphasis added).
Following the 20 May 2011 email from the lecturer, Mr Wallis sent a series of intemperate emails back, for which he later apologised (email dated 25 July 2011). Mr Wallis had appreciated that as his summaries had not been marked and he had not met the tutorial attendance requirement, he would fail the unit. Relations between the lecturer and Mr Wallis deteriorated.
Mr Wallis said that following this interchange the lecturer ‘attempted to have me excluded’. So he had contacted Health & Counselling on 24 May 2011, but did not get to see a counsellor until 11 July because he said he ‘was busy with the rest of his topics’. The counsellor said she would have a word to the lecturer. However, Mr Wallis said when she had done so, the lecturer had shown her the offending email exchanges beginning on 20 May 2011, and her attitude changed and she told Mr Wallis he should apologise to the lecturer. He did so. Mr Wallis was not excluded. Although initially Mr Wallis continued his work for his two other topics, he had overdue assessments for those topics as well and on 12 June 2011 Mr Wallis withdrew from all three units.
In his application for re-credit of his SLE, dated 20 July 2011, Mr Wallis explained the reason he withdrew from all his units was that:
The strain that this school conflict [with the lecturer] put on me over the following week, led my relationship at home to deteriorate to a terminal status. I have no doubt that this is due to my medical condition…My priorities had to change in order to repair and maintain this relationship – so I dropped my topics and put the full weight of my effort into this.
Issue
The issue for decision on the question of whether Mr Wallis’s SLE for semester 1, 2011 should be re-credited is whether ‘special circumstances’ apply in the case of Mr Wallis.
Legislation
The relevant legislation is the Higher Education Support Act 2003 (Cth). Division 79 of the Act concerns re-crediting of a SLE. Relevantly section 79-1(1)(c) of the Act provides: ‘The provider is satisfied that special circumstances apply to the person (see section 79-5)’. Section 79-5 provides:
(1) For the purposes of paragraph 79-1(1)(c), special circumstances apply to the person if and only if the higher education provider receiving the application 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 in question; and
(c) make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit.
(2) The Student Learning Entitlement 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.
The Student Learning Entitlement Guidelines made under the Act state:
CHAPTER 5 SPECIAL CIRCUMSTANCES
5.1 PURPOSE
5.1.1 The purpose of this chapter of the guidelines 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 79-5(1)(a) of the Act); and
(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 79-5(1)(b) of the Act).
5.5 CIRCUMSTANCES BEYOND A PERSON’S CONTROL
5.5.1 The 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.
5.5.5 This situation must be unusual, uncommon or abnormal.
5.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE
5.10.1 The 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.
An email dated 26 October 2012 from the ‘CGS Mailbox’, the Funding Policy Unit, Higher Education Funding Branch of the agency, stated:
The Student Learning Entitlement Guidelines were repealed as from 1 January 2012. In making a decision about whether a student meets the special circumstances provisions in the Act for a unit of study with a census date prior to 1 January 2012 universities cannot apply the SLE Guidelines because the Guidelines are no longer in force.
The Government’s current policy on the making of special circumstances decisions is reflected in the Administration Guidelines. Universities should take these Guidelines into account in making special circumstances decisions for units of study with census dates prior to 1 January 2012, noting that universities are not obliged to apply the Administration Guidelines, as a matter of law.
The Administration Guidelines 2012 (Cth), made under the Higher Education Support Act 2003 (Cth) section 238-10, are dated 28 November 2011. They are stated to come into effect on 1 January 2012. Transitional Arrangements state:
The revocation of the Former Guidelines does not affect the validity of a payment or decision made under those guidelines. A decision made under the Former Guidelines is taken to continue to have effect as if it were made under the Administration Guidelines 2012.
Chapter 3 relating to ‘special circumstances’ states that special circumstances apply to the person when circumstances are ‘beyond the person’s control’. That is further explained.
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.
The Flinders University’s Late Withdrawal Guidelines mirror the ‘special circumstances’ provisions in the Act. In particular they explain:
4.4 Special circumstances that make it impracticable for the student to complete the requirements for the topic(s) include:
Medical circumstances. For example, where a medical condition has changed to such an extent that a student is unable to continue studying;
Family/personal circumstances. For example, death or severe medical problems within a family, or unforseen family financial difficulties, so that it is unreasonable to expect a student to continue studies;
Employment related circumstances. For example, where a student’s employment status or arrangements have changed so that the student is unable to continue his or her studies;
Course related circumstances. For example, where the University has changed the topic(s) offered in such a manner that the student is disadvantaged by either not being able to complete the topic(s), or not being given credit towards other topics or courses.
4.5 Special circumstances do not include a lack of knowledge or understanding of the University’s policies and procedures…
Consideration
The Tribunal finds that Mr Wallis was a student at Flinders University in first semester 2011. He had been enrolled in three units of study, including International Business Context (BUSN2019). Mr Wallis withdrew from all three units on 12 June 2011. That was after the census date of 31 March 2011. He received a Withdraw/Fail mark for all three units.
Mr Wallis was also entitled to a Student Learning Entitlement (SLE) under the Higher Education Support Act 2003 (Cth) (Act). As a consequence of his Withdraw/Fail mark for the three units, Flinders University notified Mr Wallis by letter dated 17 August 2011 that it had refused to re-credit his SLE for the units. Mr Wallis has challenged that decision on the ground that ‘special circumstances’ apply in his case.
The special circumstances contended for by Mr Wallis include that he has ADHD. Dr Brunner and Dr Govan confirmed that he had the condition. Dr Govan’s evidence was that despite taking medication ‘many AAHD patients still have difficulty in organising themselves, and in conversation may talk so quickly that it is difficult to distinguish what they say: Mr Wallis is thus affected’.
The other circumstance referred to in the claim by Mr Wallis was that the events of and around 20 May 2011 so upset him that his behaviour impinged on his domestic situation ‘so [he] dropped [his] topics and put the full weight of [his] effort into’ maintaining his relationship with his partner.
The representative for the Secretary contended that the Tribunal must ask itself whether the circumstances facing Mr Wallis satisfied the requirements of section 79-1(c) and section 79-5 of the Act. That meant Mr Wallis had to show that circumstances occurred which were beyond his control, did not make their full impact until on or after the census date, and made it impracticable for him to complete the requirements of the units during the period in which he was to undertake them.
Relevant legal framework
The Act contains the criteria for ‘special circumstances’ in section 79-1(1)(c) and section 79-5. However, the Act also states that Student Learning Entitlement Guidelines may specify circumstances in which a higher education provider may be satisfied that special circumstances exist and impose an obligation on such a provider to make decisions in accordance with those Guidelines.[1]
[1] Higher Education Support Act 2003 (Cth) (Act) section 79-5(2).
There were Student Learning Entitlement Guidelines (SLE Guidelines) in force in 2011. However, following an amendment to the Act, the related Student Learning Entitlement (Repeal) Instrument) 2011 (Cth) was made. That Instrument repealed the SLE Guidelines. The Instrument stated it was to commence on 1 January 2012. Neither the amending Act, nor the Instrument stated that the SLE Guidelines were to be preserved in relation to units of study with a census date pre-1 January 2012. Instead, the Administration Guidelines 2012 (Cth), made under the Act, which commenced on 1 January 2012, stated that their ‘Purpose’ included to:
1.1.1 (d) specify circumstances in which a higher education provider will be satisfied that special circumstances apply to the person that:
(i) are beyond the person’s control…;
(ii) do not make their full impact on the person until on or after the census date for the unit of study in question…; and
(iii) 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…
Chapter 3 of the Administration Guidelines spells out in more detail what each of these requirements mean.
The Secretary contends that ‘the Tribunal should take Chapter 3 of the Administration Guidelines into account in exercising its discretion in this matter,’ citing cases in support.[2] The Secretary also maintains that Mr Wallis’s circumstances do not meet the ‘beyond control’ criteria in the Administration Guidelines.
[2] Re Knee and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 392; Re Palombo and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 564.
At the same time, the representative of the Secretary noted there was an alternative view about the applicability of the Administration Guidelines. In Re Rix and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education[3] the Tribunal concluded, after referring to the earlier cases in the Tribunal, that the Administrative Guidelines specifically state that they are to apply only to units of study with a post-1 January 2012 census date, not to census dates pre-1 January 2012. In particular in Re Rix the Tribunal noted that even accepting that the Administration Guidelines are policy only, ‘there must be cogent evidence that the purported policy has been adopted and that fact is known to relevant decision-makers.’[4]
[3] Re Rix and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 742.
[4] Id at [26].
The only evidence available to the Tribunal about notification and adoption of the policy by universities and other decision-makers was an email from the agency dated 26 October 2012 stating that it was current departmental policy to apply the Administration Guidelines for census date decisions prior to 1 January 2012 when making special circumstances decision. The email also noted that ‘universities are not obliged to apply the Administration Guidelines as a matter of law’. That indicates an acceptance that there were no SLE Guidelines as authorised by section 79-5(2) in force, and any alternative regime was one of policy only.
In the absence of any such evidence, the Tribunal in Re Rix was not satisfied that the Administration Guidelines constituted policy applying prior to 1 January 2012. The Tribunal in this matter agrees with that conclusion and declines to find that the Administration Guidelines applied to Mr Wallis as a matter of law. The decisions relating to his claim were made prior to 1 January 2012.
Accrued rights
The repeal of the SLE Guidelines leaves an apparent gap in the information available to decision-makers on the meaning of special circumstances for claims in the period prior to 1 January 2012. An option is to treat the Administration Guidelines as guidance that is relevant but not binding.[5] An alternative argument is to rely on the pre-existing SLE Guidelines on the basis of accrued rights. The SLE Guidelines were in force at the time Mr Wallis sought reconsideration of the decision, the reconsideration decision, and the application to the Tribunal for further review. These Guidelines were not repealed until 1 January 2012.[6]
[5] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
[6] Student Learning Entitlement (Repeal) Instrument 2011 clause 1(iii) and (iv).
Mr Wallis can accordingly rely on his rights as covered by the Act and SLE Guidelines then in force. As Dixon CJ said in Maxwell v Murphy:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affects rights or liability which the law had defined by reference to past events.[7]
That principle applies equally to subordinate legislation.
[7] Maxwell v Murphy (1957) 96 CLR 261 at 267 per Dixon CJ.
In any event, whether the Tribunal relies on this principle is not particularly significant since the terms in which the Administration Guidelines and the SLE Guidelines are couched are relevantly similar. Accordingly the Tribunal will refer to the policies apparent in both Guideline documents in its assessment of this matter.
Application of Act and policies underpinning the Act
There is no question, given that the events which led to Mr Wallis’s withdrawal from his three units did not occur until at least 20 May 2011, that the circumstances on which Mr Wallis is relying did not make their full impact on him until after the census date, 31 March 2011.[8] It is necessary, however, to consider the other criteria in the Act, namely, whether the circumstances were ‘beyond his control’[9] and made it ‘impracticable for [Mr Wallis] to complete the requirements’ for the units in which he was enrolled within the times specified in semester 1 2011.[10] The criteria are cumulative. Failure to comply with any one of the criteria means Mr Wallis cannot meet the ‘special circumstances’ provision.
Beyond his control
[8] Act s 79-5(b).
[9] Act s 79-5(a).
[10] Act s 79-5(c).
The principal issue is whether the circumstances affecting Mr Wallis’s study were beyond his control. Mr Wallis suggested that his having ADHD was a circumstance beyond his control. That can be conceded. The evidence suggests that the condition was congenital and had made an impact on Mr Wallis’s secondary as well as tertiary studies.
At the same time, Mr Wallis had managed two years of tertiary study. This was his third year at university. He was familiar with course requirements in relation to assessment and attendance. Although he gave evidence that he had been given special consideration in some of his previous courses, and for at least one other of his units of study in first semester 2011, he had not apparently needed more than the informal assistance in previous years to enable him to complete the units. Nor does it imply there was an obligation on all his topic co-ordinators to make a similar gesture. As it was the lecturer had indicated to him on occasion that he could hand-deliver his summaries under his door rather than hand them to him in person or give them to him in class next day. That is, he too, had made a concession in relation to Mr Wallis.
Mr Wallis conceded he had been aware of the assessment requirements for the International Business Context unit which were set out in the course outline. Although he said he had been confused by an email from the lecturer as to whether he could email his course summaries each week, the lecturer had reminded him on several occasions leading up to and culminating on 20 May 2011 that, in accordance with the assessment requirements in the course outline for International Business Context, he would not mark chapter summaries sent electronically. So his confusion indicates a lack of attention to these requirements, rather than circumstances beyond his control.
Mr Wallis was also aware that if he wished to seek special consideration for his disability he should speak to the Disability Advisor who would negotiate a Disability Action Plan on his behalf. The lecturer had reminded him of this in March 2011 in response to Mr Wallis informing him that he had ADHD, and reiterated this advice. So he must be taken to have known of the requirements. Since he eventually did go the Disability Advisor in May 2011, he could not claim that to do so was beyond his control due to lack of information at the time of the events which led to his withdrawal.
Nor were the events leading up to the incident on 20 May 2011, or his medical condition, sufficiently disabling to enable the Tribunal to say that seeing the Disability Advisor was beyond his control. Dr Govan did say that a symptom of Mr Wallis’s ADHD was disorganisation, which might otherwise account for him not making an appointment. However, Mr Wallis’s statement is that he did contact the Health & Counselling Centre on 24 May 2011 but did not get to see the Disability Advisor until 11 July 2011 because he was ‘busy with the rest of [his] topics’. So he was capable of making the appointment. In addition, the reason he gave for the delay does not establish that it was the effects of his condition which prevented him contacting the Disability Advisor and getting a Disability Action Plan. Rather it was his focus on his studies for other units and his prioritisation of his time which had prevented an earlier appointment.
Mr Wallis was aware of his limitations. In that context it is laudable that he writes ‘I can proudly say that since…semester 1 of 2011 – I have not had to get any extensions, supplementary examinations, submission, attendance or indeed any concessions for any topic…[h]ighlighting the lack of a need to streamline [the special considerations] process using the DAP [Disability Access Plan] pathway’. This record augurs well for his completion of his studies. At the same time, it does not suggest that his medical condition is so disabling as to amount objectively to ‘circumstances beyond his control’.
Another of Mr Wallis’s explanations for his behaviour and his failure to seek an earlier appointment was that he was reluctant to accept that he had a disability. As he said ‘I saw a DAP as a prescription for failure’. Instead he preferred to regard his ADHD as a medical condition, not a disability. At the same time Mr Wallis had obtained a medical certificate in January 2011 in apparent anticipation of his need to obtain special consideration. He had, according to his evidence, sought special consideration from topic co-ordinators in previous years of university study and it had been provided without a DAP. He had also mentioned his condition to the lecturer in March 2011 after he was advised that he had not passed the assessment item presented at the first tutorial. So he did recognise that his condition, at times, required him to seek concessions in relation to attendance and assessment. However, this does not justify his inaction in seeking a DAP when he was faced with a lecturer who would not make concessions sought without such a plan, a refusal which was consistent with the information in the course outlines for all his units.
He also claimed that it was the symptoms of his condition which led to the situation with the lecturer and that this was beyond his control. He had certainly demonstrated his frustrations with his responses to his request for special consideration in a manner which he has conceded was inappropriate. But the circumstances which led to his frustration were generally not beyond his control. Had he sought a DAP as advised, the lecturer would have been better informed about the effects of his condition and its symptoms and may have chosen, in accordance with advice from the Disability Advisor, to respond differently. However, in the absence of that information his refusal to make a concession about electronic submission was reasonable.
Mr Wallis conceded he had been advised about the requirements for handing in material as against electronic submission, albeit he claimed to be confused. The lecturer told him several times, orally and by email including on 5 May 2011, and the information was in the course outline. Without a DAP, and given that Mr Wallis had been at university for several years, a fact which he could have inferred from the units Mr Wallis was studying, he could not be expected to treat him as someone with a special condition or someone who needed special assistance.
Mr Wallis said in his view it was unreasonable of the lecturer not to have emailed him to tell him that he was not marking any of his electronically submitted summaries. It is not the teacher’s responsibility to ensure that adult students be reminded of their study obligations. Mr Wallis did manage to hand in some of the material required in hard copy form, although on most occasions it was submitted electronically. This may be evidence of his disorganisation, which Dr Govan attributes to ADHD, but this symptom had not inhibited him from completing units in previous, and according to Mr Wallis, in subsequent, years without penalty. The lecturer apparently did not respond to an email from Mr Wallis on 23 March 2011 seeking to change tutorial groups, but there is no evidence that Mr Wallis followed this up with him and pursued the request. So again the lecturer could not be expected to follow this up with the student in the face of the student’s apparent acceptance of the status quo.
Mr Wallis stated as his reason for withdrawing from all his units in June 2011 that the effects of his difficult relationship with the lecture due to the clash between the two and his inflexibility had impacted on his relationship with his partner and he decided to put his energy into managing that relationship rather than his studies. That is consistent with his claim that his studies, at least in his other two units, as at 20 May 2011, were progressing well. That was a choice Mr Wallis made and would not be a ‘circumstance beyond his control’. In addition, by his own evidence the fact he was, for a period after 20 May 2011, continuing to pursue his study in his other units, suggests that even after that date, his relationship issue was not of such moment as to affect his studies generally.
In summary, the Tribunal is not satisfied that Mr Wallis’s circumstances in semester 1 2011 were of such a nature that they were beyond his control to such an extent as to amount to ‘special circumstances’. Accordingly there is no need to consider whether it was ‘impracticable’ for him to complete the requirements of all his units. After the events of 20 May 2011, Mr Wallis was continuing to undertake work for his other units, he did seek the assistance of the Disability Advisor, and he did not withdraw from all his units until 12 June 2011, towards the end of the semester. His withdrawal was not due to ‘circumstances beyond his control’. The Tribunal upholds the decision under review.
I certify that the preceding 58 (fifty -eight) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member ........................................................................
Associate
Dated 26 April 2013
Date of hearing 25 February 2013 Applicant In person Respondent In person Advocate for the Respondent Shane Maundrell Solicitors for the Respondent Dispute Resolution Legal Branch
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