ELLISON Applicant And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 960

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 960

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1443

GENERAL ADMINISTRATIVE DIVISION		)
Re		TERESA ELLISON

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date16 December 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...................[Sgd]...............

Senior Member

CATCHWORDS

SOCIAL SECURITY–  benefits and entitlements  –  summer semester enrolment in unit of study at University  – failure to attend classes  –  unit not completed successfully  –  corresponding reduction of student learning entitlement  –  decision to refuse request to re-credit student learning entitlement  –  no special circumstances to justify such re-crediting  –  decision affirmed.

Higher Education Support Act 2003 (Cth), ss 70-1, 76-1, 79-1, 79-5, 212-1, 238-10

Student Learning Entitlement Guidelines (Cth), ss 5.1, 5.5, 5.10

REASONS FOR DECISION

16 December 2009 Mr R G Kenny, Senior Member    

BACKGROUND

1.      As part of her study toward a Bachelor of Education degree at Griffith University, Teresa Ellison enrolled in the unit Educational Counselling 4268EPS (“4268EPS”) for the summer semester 2009.  She did not complete 4268EPS and, on 10 March 2009, the University rejected Ms Ellison’s request to re-credit her student learning entitlement (“SLE”) for 4268EPS.  That decision was affirmed by the University on 19 March 2009 and the matter is now before the Administrative Appeals Tribunal (“the Tribunal”).[1]

[1] In accordance with s 212-1 of the Act.

2.      Under the Higher Education Support Act 2003 (“the Act”), a student starts study with an SLE equivalent to seven years of full-time study.  This is reduced when units of study are undertaken as a Commonwealth supported student.[2]  The Act sets out when the SLE is reduced.[3]  In Ms Ellison’s case, SLE was to be reduced if, at the end of the census date for 4268EPS, she was enrolled in 4268EPS.  The Act also sets out circumstances when an SLE may be re-credited to a student.  In the decision under review, the University determined that the commencement date of 4268EPS was 7 January 2009, that the census date for 4268EPS was 8 January 2009, that Ms Ellison was enrolled at the end of that date, that her SLE should be reduced and that she did not satisfy the circumstances whereby her SLE could be re-credited. 

[2] See s 70-1 of the Act.

[3] See s 76-1(3) of the Act.

ISSUES AND LEGISLATION

3.      In so far as relevant to this matter, Ms Ellison’s SLE for 4268EPS may be re-credited if special circumstances apply to her.[4]  Under s 79-5(1) of the Act, special circumstances are those 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.

[4] See s 79-1(1)(c) of the Act.

4.      Under s 79-5(2) of the Act, the Student Learning Entitlement Guidelines (“the Guidelines”) may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraphs (a), (b) or (c) above and a decision must be in accordance with any such guidelines.  The Guidelines referred to in that provision have been published[5] and Chapter 5 thereof reads:

[5] These were published by the then Minister on 21 July 2004 in accordance with s 238-10(1) of the Act.

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.

5.      It is not disputed by Ms Ellison that she was enrolled in 4268EPS on the census day or that she did not satisfy the University’s requirements in relation to 4268EPS.  Indeed, she conceded that she did not attend any of the classes in the course. The issue for determination is whether there are special circumstances that apply to her such that her SLE for 4268EPS may be re-credited to her.

EVIDENCE

Ms Ellison

6.      Ms Ellison said that she had problems enrolling in 4268EPS online because the enrolment list was full.  She contacted a University officer who over-rode that and permitted her enrolment.  Ms Ellison received no notification of the enrolment and her online searches were unable to find a timetable for 4268EPS.  It was an intensive course and Ms Ellison was not aware that classes commenced on 7 January 2009 and lasted for a week.  She learned of the dates for classes in 4268EPS late in that week.  She was aware that there would be a census date which marked the date by which she could cancel her enrolment without incurring any penalty.  However, as she did not know the days on which 4268EPS was to be taught, she was unaware of what the specific census date was until after that date had passed.  When she realised what the timetable was, she also learned that the census date was 8 January 2009.  She then contacted Dr Lorelei Carpenter, the course convenor of 4268EPS, who advised her that the course had been completed and that it had been her responsibility as an experienced student to obtain the information. 

7.      Though she found no timetable for 4268EPS online, Ms Ellison recalled reading a notice on the 4268EPS web site that there was an “expectation that students will attend and actively participate in all sessions” in the course.    In contrast with 4268EPS, Ms Ellison was able to complete her enrolment and obtain timetable information for another unit (4302EPS), which she successfully undertook on an intensive basis later in January.

8.      Ms Ellison’s main reason for not attending classes in 4268EPS was that she was not aware that the course had started on 7 January 2009.  However, she referred to three other matters that were impacting on her during January 2009. 

9.      One of these was that her car suffered a starter-motor malfunction and she would not have been able to drive to the University.  She lives in New South Wales, some distance from the University, and bus travel was inconvenient.  Her car was repaired in time for her to attend classes in the second unit later in the month. 

10.      The second matter related to Ms Ellison’s five year old son.  His usual day-care arrangements were not available to her in early January 2009.  Her carer had advised her in December that she would be on holiday and would not be able to look after him until later in January 2009.  Attempts to obtain alternative assistance from family and friends were not successful.

11.     The third matter was of a medical nature.  Ms Ellison suffered a miscarriage in January 2009.  She was hospitalised on 21 January for two days although her evidence was that she experienced severe pain and discomfort from early January which would have interfered with undertaking a course of study.

Cathy McGrath 

12.     Cathy McGrath is the Director of Student Administration at the University.  She provided a statement and also gave evidence and said that there had been an upgrade of the University’s online systems in May 2008. This introduced a new enrolment procedure.  She said that the new system was tested at the start of 2^nd semester 2008 and no problems were encountered.  She said that she received no complaints about the use of the system for the summer semester 2009.  Additionally, Ms McGrath said that the new system did not replace the old one but ran parallel with it so that the former procedure was available to students as an alternative. 

13.     Ms McGrath referred to a copy of the course outline for 4268EPS, one of which was in evidence.  She noted that it was updated on 11 November 2008 and said that her records revealed that it had been posted online on 14 November 2008 and was accessible to students from that time.  She conceded that it did not set out the timetable but said that it did give dates for assessment, one of which was on 12 January 2009.  Ms McGrath said that the timetable information had been posted online in the course catalogue on 16 September 2008 and that this included the relevant census date for 4268EPS.  She said that her online searches had revealed that Ms Ellison had successfully enrolled in 4268EPS online on 21 September 2008 at 2.09.12 pm.  She noted an unsuccessful attempt by Ms Ellison to enrol in another unit (4302EPS) at that time because it was full but that she had been able to enrol in that course on 3 December 2008.   Ms McGrath also noted that online access was achieved by Ms Ellison on 30 November 2008 and said that she would have been able to view all of her enrolment details on that date and on 3 December 2008.  Ms McGrath also noted that the online records revealed that Ms Ellison viewed her academic transcript on 3 December 2008 and 15 December 2008.  

Dr Lorelei Carpenter

14.     Dr Lorelei Carpenter was the course convenor of 4268EPS.  She provided a statement and also gave evidence.  She did not become aware that Ms Ellison had not attended lectures in 4268EPS until the week commencing 19 January 2009 after the course was completed.  She said that information about 4268EPS, including the timetable, had been posted online and was available to all students before 23 December 2008.  She also said that the University enrolment procedures do not allow a student to enrol in a unit until the timetable for the course has been published online.  Dr Carpenter said that she knew of one other student who had difficulty in attending the intensive classes in 4268EPS.  She also referred to the online notice, which advised students that attendance at all sessions was required and that absence would mean that the student failed the course. 

Other evidence

15.     In evidence was a copy of Ms Ellison’s academic record at the University.  It reveals that, at the end of 2008, she had completed three years of study in which she achieved two high distinctions, six distinctions, eleven credits and two passes.  The result in 4268EPS is the only failure on her record.  In her evidence, she said that she completed her degree during 2009.

16.     Torgeir Solemdal is the counsellor with Student Services at the University.  He wrote that he had been advised by Ms Ellison in March 2009 that she had experienced difficult medical issues in January 2009 and his opinion was that this affected her mood, concentration and sleep, leading to her decision to withdraw from 4268EPS after the census date. 

17.     In evidence was a Tweed Heads Hospital Emergency Department Assessment document completed on 21 January 2009.  It related to a hospital admission by Ms Ellison.  It describes lower abdomen cramping since the previous day with bleeding and fever for the previous two days.  Also in evidence was a medical report, dated 23 January 2009 from Dr Wendy Carseldine who wrote that Ms Ellison was suffering from a medical illness and was unfit for work for the period from 19 to 27 January 2009.

CONSIDERATION

18.     Ms Ellison’s evidence was characterised by significant uncertainty in relation to many relevant aspects of this matter.  This extended to when she enrolled in 4268EPS, when she learned of 4268EPS’s timetable and census date, when she contacted Dr Carpenter about non-attendance at 4268EPS’s classes, when she began to experience difficulties which resulted in the miscarriage, when she was hospitalised and what arrangements she made for the care of her son.  Clearly, stressful events occurred to her during that time and these may have had bearing on the uncertainties in her evidence.  On the other hand, Ms McGrath and Dr Carpenter were consistent in their evidence and were able to confirm details by consulting the University’s official records.  In that case, I prefer the evidence of Ms McGrath and Dr Carpenter to the extent that it differs from that of Ms Ellison.

19.     I am satisfied that Ms Ellison was enrolled in 4268EPS in September 2008 and that details of her enrolment, of the timetable for 4268EPS and the relevant census date were available online at that time.  I am also satisfied that she could access the online material, and did so on 30 November 2008, 3 December 2008 and 15 December 2008.  Despite that, she maintained that she had not been aware that the course was conducted during the week starting 7 January 2009.  She was aware that non-attendance at classes in the course meant that she would fail.  That knowledge and her previous sound academic record support, for whatever reason, her contention that she did not know 4268EPS’s classes started on 7 January 2009 or that the census date was 8 January 2009.  Unfortunately, that lack of knowledge had the consequence that she did not attend, and this meant that she was bound to fail 4268EPS.  She remained enrolled at the end of the census date and her SLE was properly reduced.  If special circumstances apply to her, the SLE can be re-credited.

20.     The reasons advanced by Ms Ellison to satisfy the special circumstances requirement in this matter are the changed arrangements for her son, her transport problems and her health.  Lack of knowledge of the timetable or census date is not a special circumstance as it was not beyond her control.

21.     The unavailability of child care for Ms Ellison’s son in the week commencing 7 January 2009 is not a special circumstance.  In that week, Ms Ellison was not aware that she needed to attend classes and available child care would not have changed that.  In any event, she was made aware of the changed care arrangements in December 2008, which gave her sufficient time to seek amended child care arrangements for the week of classes.  As such, I am satisfied that it was a matter within her control.  Similarly, the availability of a functioning vehicle in the week of 7 January 2009 would have made no difference to Ms Ellison’s attendance because, again, she was not aware that it was running. 

22.     Ms Ellison’s health problem raises different issues.  It was clearly beyond her control.  However, I am satisfied that it did not have its full impact on her until after the census date or, indeed, until after the course was completed.  As noted above, her evidence was very vague in relation to the onset of symptoms leading to her miscarriage.  She was admitted to hospital on 21 January 2009.  She described Dr Carseldine as the practitioner who treated her in the hospital.  Dr Carseldine’s medical certificate gives 19 January 2009 as the commencement of Ms Ellison’s incapacity.  It was completed by Dr Carseldine with knowledge of Ms Ellison’s situation.  That timeframe is also consistent with the terms of the entry medical report, which nominates a two day history prior to admission on 21 January 2009, when symptoms were displayed.  I am satisfied that the impact of Ms Ellison’s condition did not manifest itself until the date given by Dr Carseldine, i.e. 19 January 2009.  That being the case, Ms Ellison’s medical situation does not meet the requirements of s 5.10.1 of the Guidelines because it had no impact before or on the census date.

23.     I am satisfied that the circumstances relied on by Ms Ellison, whether taken individually or in combination, do not constitute special circumstances such that her SLE should be re-credited to her.

DECISION

24.The Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

Signed: ...........................[Sgd]..........................................
  Mátyás Kochárdy, Research Associate

Date of Hearing  9 December 2009
Date of Decision  16 December 2009
Ms Ellison was not represented
Advocates for the Respondent: Mr Tim Lawson & Ms Amy Carseldine