Frankcom and Secretary, Department of Education

[2019] AATA 4205

Frankcom and Secretary, Department of Education [2019] AATA 4205 (14 October 2019)

Division:General Division

File Number(s):2018/5964      

Re:Peter Frankcom  

APPLICANT

Secretary, Department of EducationAnd  

RESPONDENT

DECISION

Tribunal:Senior Member N A Manetta

Date:14 October 2019

Place:Adelaide

The Tribunal affirms the decision under review.

............[Sgnd].................................................

SENIOR MEMBER N A MANETTA

CATCHWORDS

HIGHER EDUCATION SUPPORT – FEE-HELP debt – application for re-crediting of FEE-HELP balance – whether applicant’s circumstances made it impossible for him to make a post-census-date application to have his balance re-credited – decision affirmed

LEGISLATION

Higher Education Support Act 2003

SECONDARY MATERIALS

G E Dal Pont, Equity and Trusts in Australia, 7ed, 2019, Lawbook Co

REASONS FOR DECISION

1. This is an application by Mr Peter Frankcom seeking a review of a decision taken on behalf of the respondent by a private-sector education provider, the Australian Institute of Professional Counsellors (“AIPC”).  The AIPC decided that Mr Frankcom was ineligible to receive a re-crediting of what is known as a “FEE-HELP balance”.  This balance reflects the debt owed to the Commonwealth Government by Mr Frankcom, who borrowed monies from the Government to meet certain tuition fees charged by AIPC in respect of a course he began but did not complete.  The AIPC decided, first, that Mr Frankcom had applied too late for the re-crediting and, secondly, that he was not prevented by personal circumstances from making a timely application.   At the hearing before me, Mr Frankcom was represented by Ms Lee-Justine; the respondent, by Mr Galvin.

   STATEMENT OF CONCLUSION

2. I have decided to affirm the decision under review.  Below I set out the salient facts and my reasons for the conclusion I have just stated.

   FACTS

3. Mr Frankcom gave oral evidence. As a matter of background, I note that Mr Frankcom was at one time involved in the investigation of cases of suspected juvenile neglect or mistreatment and was employed by Families SA, a South Australian Government agency, in this regard.  In 2012 he was wrongly suspended from his work at Families SA because it was alleged he had inspected a confidential file he had no right to inspect.  Mr Frankcom maintained at all times that he had been directed to look at the file. In the ensuing proceedings in the South Australian Industrial Commission (“SAIC”), Mr Frankcom was exonerated.  Before me, Mr Frankcom referred to his very poor treatment at the hands of Families SA, including the decision taken to suspend him immediately (so that he was not even allowed to collect his personal belongings before having to leave his workplace) and the unnecessarily protracted proceedings in the SAIC, during which Families SA failed to produce for a long time the email that directed him to look at the confidential file.

4. There is no doubt in my mind that Mr Frankcom’s unfair treatment caused him considerable stress at the time.  He said depression and the emergence of a tinnitus condition resulted from the events.

5. Mr Frankcom eventually received a separation package from Families SA. As I understand matters, the proceedings in the SAIC and the finalisation of the separation package coincided and occurred in 2014. From June 2014 to December 2014, Mr Frankcom applied for work but was unsuccessful.  He was a mature person, then aged 62.

6. Mr Frankcom decided to enrol in a course to enhance his skills and prospects of employment.  His aim was to become a counsellor for men who assault their partners.  Mr Frankcom enrolled in a Bachelor of Counselling course offered by AIPC.  He made contact with AIPC and a letter dated 20 January 2015, to which I will refer in due course, was posted to him by AIPC.[1]  He formally enrolled in the course on 29 January 2015.[2]  On this date, before enrolling in the course, he had an audiometry test that confirmed his tinnitus condition. He received the results of his audiometry test on the spot and thought a hearing aid might help him cope better with the condition.  For that reason, he decided to enrol in the AIPC course.  He sought a loan from the federal Government to assist him to meet the tuition fees.[3]

   [1] Exhibit R1, pp 22-25.

   [2] Ibid, pp 67-69.

   [3] Ibid, p 70.

7. The course was expensive.  First-semester tuition fees were in the order of $7,400 ($1,850 for each of four units).[4] Mr Frankcom enrolled in the following units of study in his first semester: CORE101 (Scholarship: Academic Writing and Presentation), CORE102 (Communication Skills: Professional Negotiation and Conflict Resolution), COU101 (Introduction to Counselling), and COU102 (Theoretical Foundations of Counselling).[5]

   [4] Ibid, p 75.

   [5] Ibid, p 67.

8. Mr Frankcom applied for, and received, FEE-HELP assistance from the federal Government in respect of these fees.  In the normal course, this would lead to a debt that Mr Frankcom would have to repay.  I note a twenty-five percent loan fee was charged, which brought the total liability to $9,250.  

9. Mr Frankcom struggled with the course, which began in March 2015.  Mr Frankcom gave evidence that he disliked one of the principal features of the course, an online “forum” in which all students were expected to participate and share learning insights.  He gave evidence that he found the forum unhelpful, involving as it did considerable small talk and social messaging.  The teaching methods used in the course did not suit him either. He had trouble with the online readings and found himself becoming more and more depressed about matters, he said.

10. On 31 March 2015, Mr Frankcom sent an email to the Student Support Officer, Ms Melanie Ryan. It was in the following terms:[6]

    “Morning (or Afternoon) Melanie

    I am in a position where I need to change my study status, is there a restriction on subjects I can choose if I change to part time??

    Kind regards,

    Peter Frankcom”.

    [6] Ibid, p 73.

11. He received a response later that day as follows:[7]

    “Hi Peter,

    Thank you for your email. You are welcome to reduce your subjects, however Census Date was 30th March 2015 and you will still be charged for all subjects you are enrolled into (sic) prior.

    If you wish to withdraw from 1 or more subjects you can simply send an email to confirm which subjects you would like to withdraw from in Semester 1, 2015. If you wish to withdraw from the course completely, you must post a signed letter of withdrawal including your name, student number, course and subjects enrolled and reason for withdrawal.

    Please do not hesitate to contact me should you have any questions.

    Kindest regards

    Melanie Ryan”.

    [7] Ibid, p, 72.

12. To this email, Mr Frankcom responded on 31 March as follows:[8]

    “Thank you Melanie

    In that case I would like to continue with COU 101 Introduction to Counselling and withdraw from COU 102, Core 101 and Core 102. I presume I can enrol in those subjects in 2016 once my position returns to a more normal state, thank you again

    Kind Regards,

    Peter Frankcom”.

    [8] Ibid.

13. To this email, Ms Ryan responded on 31 March as follows:[9]

    “Hi Peter,

    Thanks for your email. Yes you are able to re-enrol in Semester 2, 2015 or next year, however you will still be charged a FEE-HELP debt for the subjects you are withdrawing from.

    As per the enrolment form a student has to be enrolled in CORE101 in their first Semester in the Course.

    Please let me know again with subjects you would like to withdraw from.

    Please do not hesitate to contact me should you have any further questions.

    Kindest regards,

    Melanie Ryan”.

    [9] Ibid, p 71.

14. Mr Frankcom gave evidence, which I accept, that his first email was preceded by a phone call with Ms Ryan on 30 March 2015 in which he explained that he was having difficulty applying himself to study. He said that he was advised in the call to send an email informing AIPC of his wish to defer. The email that Mr Frankcom ended up sending did not seek a deferral as such, but was in the terms quoted above.

15. Mr Frankcom formally withdrew from the course in early April 2015, after the so-called “census” date, to which I shall refer in due course.  He obtained employment in February 2016 with Aboriginal Family Support Services and has been working well with this employer since then. He has secured promotions and, at a personal level, is faring much better.

16. I accept that Mr Frankcom was not told on 30 March 2015 that he needed to withdraw by the end of that same day if he wished to avoid incurring a FEE-HELP debt. On the other hand, the evidence presented by Mr Frankcom does not allow me to conclude that he asked Ms Ryan any questions concerning his liability for fees.  On the evidence before me, I do not find Mr Frankcom was misled by Ms Ryan. 

17. Mr Frankcom gave evidence that he found out to his surprise in 2018 that he had a debt arising from his enrolment in the course.  This appeared in an income tax assessment notice.  At that point, Mr Frankcom applied to have his FEE-HELP balance recredited so that there would be no outstanding debt in his account.  That request was declined.

    REASONS

18. The question before me is whether Mr Frankcom satisfies the applicable legal criteria governing the recrediting of his FEE-HELP balance so that he does not have to repay the Commonwealth the loan he took out.

19. As a matter of law, Mr Frankcom’s debt accrued on 30 March 2015 because he had not withdrawn from the course by that date, which was the relevant “census date” as it is known.  The “census date” is the date on which an education provider examines its enrolment records to confirm enrolments.  Its significance is that a liability for tuition fees for a course will not accrue if a formerly enrolled student has withdrawn from the course by the census date, but it will accrue if an enrolled student withdraws after the census date, even if the withdrawal is effected just a short time later. 

20. I find that Mr Frankcom did not know that the census date fell on 30 March 2015 and did not appreciate at that time the significance of the date. I find, however, that his attention was drawn to the existence and significance of the census date in his written request for fee help assistance from the Commonwealth Government[10].  The form records that an applicant, in signing, is taken to understand the following (amongst other things):[11]

    “-    a 25% loan fee will be applied to the amount of FEE HELP assistance…, and    that this loan fee will be included in your FEE-HELP debt;

    -    you will repay to the ATO the amount that the Commonwealth has loaned to you (plus the loan fee if applicable)….;

    …

    -    you are able to cancel this request in writing at any time, with your institution, and that it will no longer apply from that time.  However, this must be done by the census date, otherwise you will have a debt to the Australian Government that you are legally required to repay.”

    [10] Ibid, p 70.

    [11] Ibid.

21. Mr Frankcom has no recollection now of the form.  Whether he read the form carefully or not at the time, I find that his attention was clearly drawn to the existence of a “census date” which had a critical bearing on his future liability to repay the monies he was proposing to borrow from the federal Government.  

22. In addition, I find Mr Frankcom was sent the letter dated 20 January 2015 to which I have earlier referred[12].  That letter advised Mr Frankcom of the census date of 30 March 2015 and referred students to the online version of the student handbook which contains relevant information.  Mr Frankcom maintained in evidence that he did not receive this letter.  I accept that evidence, but I find that APIC acted reasonably in posting the letter to Mr Frankcom and in assuming that he would receive it.  The letter was correctly addressed.   I do not find that APIC needed to double-check that Mr Frankcom had in fact received the letter nor did APIC need to double-check that Mr Frankcom understood the basic features of his liability in respect of fees.  In my opinion, it was reasonable for APIC to assume that students enrolling in its courses would inform themselves of relevant requirements from available information or make inquiries.  

    [12] Ibid, pp 22-25.

23. Mr Frankcom was, of course, aware of the significant fees to be charged in respect of the course offered by AIPC.  He had applied for financial assistance in the form of a loan from the federal Government through the FEE-HELP assistance program in order to meet those fees. He was a mature person at the time, and I find that he ought to have ensured that he was aware of the implications of his decision to enrol and, in particular, of the financial consequences to him of any withdrawal from the course.

24. Mr Frankcom’s entitlement to have his FEE-HELP balance re-credited depends on the regulatory regime set out in the Higher Education Support Act 2003 (“the Act”).  Section 104-25(1) of the Act relevantly provides as follows:

    “(1)  A higher education provider must, on the Secretary's behalf, re-credit a person's FEE-HELP balance with an amount equal to the amounts of FEE-HELP assistance that the person received for a unit of study if:

    (a)  the person has been enrolled in the unit with the provider; and

    (aa)  access to the unit was not provided by Open Universities Australia; and

    (b)  the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake the unit; and

    (c)  the provider is satisfied that special circumstances apply to the person (see section 104-30); and

    (d)  the person applies in writing to the provider for re-crediting of the FEE-HELP balance; and

    (e)  either:

    (i)  the application is made before the end of the application period under section 104-35; or

    (ii)  the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.”

25. In my opinion, Mr Frankcom did not satisfy paragraph (e) and so no obligation to re-credit his balance arose under subsection (1). 

26. I note that subparagraph (e)(i) refers to the end of the “application period under section

    104-35”.  Section 104-35 is in the following terms:

    “Application period

    (1)  If:

    (a)  the person applying under 104-25(1)(d) for the re-crediting of the person's FEE-HELP balance in relation to a unit of study has withdrawn his or her enrolment in the unit; and

    (b)  the higher education provider gives notice to the person that the withdrawal has taken effect;

    the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.

    (1A)  If:

    (a)  the person applying under paragraph 104-25(2)(d) for the re-crediting of the person's FEE-HELP balance in relation to a unit of study has withdrawn from the unit; and

    (b)  Open Universities Australia gives notice to the person that the withdrawal has taken effect;

    the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.

    (2)  If subsections (1) and (1A) do not apply, the application period for the application is the period of 12 months after the period during which the person undertook, or was to undertake, the unit.”

27. Leaving aside for one moment an argument that Ms Lee-Justine advanced, I find that Mr Frankcom does not fall within subsection (1) of section 104-35.  The AIPC did not ever send Mr Frankcom a confirmation of his withdrawal.  Subsection (1A) is irrelevant as it concerns Open Universities Australia.

28. Subsection (2) of section 104-35 applies in Mr Frankcom’s case because it addresses specifically a situation in which the education provider has not confirmed a student’s withdrawal by notice.  In such a case, the application period is extended by a period of “12 months after the period during which the person undertook, or was to undertake, the unit”.

29. Mr Frankcom was due to complete his units of study in June 2015. As AIPC did not confirm his withdrawal, it follows that the “application period” ended in June 2016.  Mr Frankcom did not apply for a re-crediting of his FEE-HELP balance before June 2016, however.  Accordingly, he does not meet subparagraph (e)(i) of section 104-25. 

30. At this point, it is convenient to refer to a submission Ms Lee-Justine advanced on Mr Frankcom’s behalf.  Ms Lee-Justine pointed out that the course handbook advised students that they would receive a letter of confirmation in respect of any withdrawal they made.  Ms Lee-Justine submitted that the respondent was “estopped” from denying the application of this part of the handbook.  It followed, so the argument ran, that subsection (1) of section 104-35 applied and that unless and until notice was given to Mr Frankcom –   and it was agreed between the parties that none had ever been given –  time had not yet begun to run in respect of the 12-month period.

31. There are several difficulties in this submission in my opinion, but for present purposes it is sufficient to note one difficulty that is decisive.  An essential feature of any estoppel of this type is reliance by a person to his or her detriment on another’s statement or conduct.[13]  Mr Frankcom’s evidence is that he did not read the student handbook because he did not receive the letter of 20 January 2015 advising him of its existence.  It follows, in my opinion, that this crucial ingredient of estoppel is absent, even on the assumption that this legal doctrine might otherwise have applied.

    [13] See, for example, G E Dal Pont, Equity and Trusts in Australia, 7ed, 2019, Lawbook Co, Chapter 10, at [10.05], [10.35], [10.40], [10.50] and [10.160]ff.

32. In my opinion, Mr Frankcom must satisfy subparagraph (ii) of section 104-25(1)(e) if he is to satisfy subsection (1).  The relevant question here is whether or not it was possible for Mr Frankcom to make an application for the re-crediting of his balance before the end of the “application period”, that is, before June 2016. The answer to this question is yes in my opinion.

33. Mr Frankcom’s evidence to the Tribunal is that he began work, and successfully so, in February 2016.  There is no reason to suppose Mr Frankcom was unable to apply for re-crediting of his FEE-HELP balance from February 2016 onwards, whatever the position before that date.

34. For the purposes of deciding this matter, I can assume that Mr Frankcom was unaware of, or did not recall, his outstanding debt.  That does not mean, in my opinion, that it was not possible for Mr Frankcom to make an application.  I do not find as a fact that he was misled by the course provider or by the respondent in this regard.  I find, rather, that he made certain assumptions that in the event proved incorrect.

35. In this connection, I would point out that Mr Frankcom knew, or ought to have known, from Ms Ryan’s emails to him on 31 March 2015 that he would incur a debt in respect of any subjects from which he elected to withdraw.  This followed because the census date had passed.  Ms Ryan made that plain.  At that stage, Mr Frankcom should have investigated with Ms Ryan what possibilities, if any, there were to have the debt reduced or eliminated altogether.  He did not take any steps in this regard, unfortunately.  Had he taken steps, he might have learned of the possibility of making a post-census date application for the re-crediting of his FEE-HELP balance provided he made the application by June 2016 and provided there were special circumstances.[14]

    [14] As stipulated by s 104-25(1)(c).

36. I should also say that I am not satisfied that Mr Frankcom was so mentally unwell that he was unable to make inquiries at the time of his withdrawal.  On 31 March 2015, just before withdrawing, Mr Frankcom was corresponding with Ms Ryan effectively by email and he successfully completed the withdrawal process in early April 2015.  In the circumstances, I conclude that Mr Frankcom would have been well enough to make further inquiries.  I have already concluded that he would have bene capable of making an application for the re-crediting of his balance by June 2016 had he been aware of the possibility of making such an application.  

1. Given my conclusions, I need not deal with the further argument advanced on behalf the respondent that Mr Frankcom would not, in any event, have satisfied the “special circumstances” test in section 105-25(1)(c).

   FORMAL DECISION

2. The Tribunal affirms the decision under review.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

............[Sgnd].....................................

Associate

Dated: 14 October 2019

Date of hearing:	9 August 2019
Counsel for the Applicant:	Ms J. Lee-Justine
Solicitors for the Applicant:	Gawler Legal
Counsel for the Respondent:	Mr T. Galvin
Solicitors for the Respondent:	Maddocks