FSMN and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 1051
•24 November 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1051
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0158
GENERAL ADMINISTRATIVE DIVISION ) Re FSMN Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member R W Dunne Date24 November 2008
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
EDUCATION – applicant enrolled at University – examinations failed in three units of study – supplementary examinations passed in two failed units – no application for supplementary examination in third failed unit – application for re-crediting of Student Learning Entitlement for third unit – application for re-crediting refused and decision affirmed – application for review of decision – decision affirmed
Higher Education Support Act 2003 s 79-1, 79-5
Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409
Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634
Re Hill and Secretary, Department of Family and Community Services [1999] AATA 909
Re Alexandra Crowell and Secretary, Department of Education, Science and Training [2006] AATA 267REASONS FOR DECISION
24 November 2008 Senior Member R W Dunne 1. In Semester 1, 2006 the applicant was enrolled at Flinders University to study for five units as part of the Bachelor of Health Sciences degree. Pursuant to a confidentiality order made under s 35(2) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), the applicant is referred to in these reasons as “FSMN”. In June 2006, FSMN’s father was admitted to hospital with a suspected extension of a stroke he had suffered in 2002 and it became necessary for him to attend to his father’s care. Later in June, he sat for examinations in four of the units, the fifth unit not requiring him to sit. He passed three of the units, two of them in supplementary examinations. He failed the fourth unit (“BIOL2101”), but did not apply for or undertake a supplementary examination. He subsequently applied to the University for a re-crediting of his Student Learning Entitlement, under the Higher Education Support Act 2003 (“Act”), claiming that he had failed the unit because of his father’s illness. His application was refused and the decision was affirmed. He has applied to this Tribunal for a review of the University’s decision.
2. At the hearing, FSMN represented himself and Ms Alice Linacre represented the respondent. The Tribunal received into evidence the T documents (Exhibit R1) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following documents:
·unofficial university transcript for FSMN for 2002, 2003, 2005, 2006 and 2007 (Exhibit R2); and
·Flinders University Assessment Policies and Procedures (Exhibit R3).
issue for the tribunal
3. The issue for the Tribunal’s consideration is whether FSMN’s Student Learning Entitlement for BIOL2101 should be re-credited pursuant to s 79-1 of the Act.
legislation
4. Part 3-1 of the Act makes provision in relation to Student Learning Entitlement (“SLE”). For a student to receive assistance under the Act, units of study in which the student enrols must be covered by his or her SLE. Broadly speaking, a student starts with a SLE equivalent to seven years of full-time study. Generally, this is reduced as the student undertakes units of study as a Commonwealth-supported student, but it can be re-credited in some circumstances.
5. SLE is measured in Equivalent Full-Time Student Load (“EFTSL”), which is the proportion of a full-time load that a unit of study represents. Higher education providers set an EFTSL for each unit of study they offer. Generally, to be Commonwealth-supported for a unit, a student must have enough SLE to cover the EFTSL value of that unit.
6. Under s 79-1 of the Act, a higher education provider must re-credit a person’s SLE if certain criteria are satisfied. Section 79-1 reads:
“79-1 Main case of re-crediting a person’s SLE
(1)A higher education provider must, on the *Secretary’s behalf, re-credit a person’s *SLE with an amount equal to the *EFTSL value of a unit of study if:
(a) the person has been enrolled in the unit with the provider; and
(aa)the unit would, if completed, form part of a *course of study undertaken with that provider or another higher education provider; and
(ab)the unit does not wholly consist of *work experience in industry; 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 79-5); and
(d)the person applies in writing to the provider for re-crediting of the SLE; and
(e) either:
(i)the application is made before the end of the application period under section 79-10; 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.
Note: A HECS-HELP debt relating to a unit of study will be remitted if the SLE in relation to the unit is re-credited: see subsection 137-5(4). In addition, it is a condition of the higher education provider’s funding under Part 2-2 that payments for the unit must be repaid: see section 36-20.
(2)If the provider is unable to act for any one or more of the purposes of subsection (1), or section 79-5, 79-10 or 79-15, the *Secretary may act as if any one or more of the references in those provisions to the provider were a reference to the Secretary.”
7. One of the criteria for re-crediting a person’s SLE (in s 79-1(c)) is that special circumstances apply to that person. Section 79-5 reads:
“79-5 Special circumstances
(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.”
8. Section 79-5(2) refers to Student Learning Entitlement Guidelines (“Guidelines”). The Guidelines in relation to “special circumstances” relevantly read:
“5.1 PURPOSE
5.1.1The purpose of this chapter of the guidelines is to specify the circumstances in which a higher provider will be satisfied that special circumstances apply to the person that:
(a)are beyond a 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).
5.5CIRCUMSTANCES BEYOND A PERSON’S CONTROL
5.5.1The 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.
5.5.2This situation must be unusual, uncommon or abnormal.
5.10CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE
5.10.1The 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.”
background and evidence
9. In Semester I, 2006 all units of study at Flinders University in the Bachelor of Health Sciences degree had a census date of 31 March 2006. Apart from one unit, which did not require FSMN to sit for an examination, examinations in the other four units were to take place between 20 June and 28 June 2006. He had first enrolled for study in the Bachelor of Health Sciences degree in 2002-2003, and had re-enrolled for study in the same degree in 2005-2007. When his father suffered the stroke in 2002, he required medication and was incapacitated, but was not completely dependant on others. He was able to do things by himself and the level of care that he needed was not high. On 1 June 2006, FSMN’s father was admitted to hospital with a suspected extension of his stroke. He was diagnosed with high blood pressure, irregular heart rhythm and global amnesia. He was discharged on 5 June 2006 and needed care at home. He could not take his medicine or cook for himself. Because his needs were greater than in 2002, it was necessary for someone to be home to care for him. FSMN had a younger brother, but he worked during the day and was unable to care full-time for his father. After his father’s illness, FSMN attended counselling sessions with a psychologist/student counsellor at the University on four occasions between 7 June and 10 November 2006. The psychologist noted that FSMN was dealing with a number of personal and family health matters. He was worried that his father may have had a further stroke. He was unable to concentrate and focus on his studies at that time, and was supported with extensions on study assignments.
10. Between 20 June and 28 June 2006, he sat for four examinations, but passed only one on 23 June 2006. Because of his father’s health, he was too distressed and pre-occupied to think about applying for supplementary examinations. However, he eventually did sit for supplementary examinations in two units and passed both of them. He reiterated that, because he was pre-occupied with his father’s health and care, he had overlooked applying for a supplementary examination in BIOL2101. In May 2007, he applied to the University for re-crediting of his SLE for BIOL2101. The University sought further evidence from him in support of his application, but his application was ultimately refused because he had failed to demonstrate why he had not applied for a supplementary examination in the failed unit.
11. In cross-examination, FSMN said that his father was married and his wife was also at home, but that he had been the main carer for his father. His father required assistance with his eating, his medication and his dressing. As his mother and brother did little to assist, he attended to most of his father’s care. He said the University psychologist/student counsellor had not provided advice to him about his study or his examinations. He saw her for psychological counselling because he could not afford to have evaluations performed privately. He took advantage of a free service that was available to him as a student. As he had been unable to concentrate and focus, he had not asked her about his upcoming examinations. He was not going to sit but, in the end and after contacting the University, he decided he would and then make an assessment of his position, based upon the results. He knew the dates of the examinations and had been organised beforehand. He had studied before his father’s illness, but could not study afterwards. He was fairly sure he had not passed BIOL2101, but did not call the University for the results. His mother suggested that he should enquire at the University about a supplementary examination, but he did not do so. He reasoned that he would simply resit the examinations afresh and get better marks next year.
12. The health study unit (HLTH3001) did not require examinations. However, after his father’s illness, he had been able to pass the unit by requesting and being granted two extensions on the final assignment. The extensions were able to be applied for by email and could be made by him quickly. With the second extension, he was unable to obtain more than a month to finish the assignment. He was able to work on the assignment and finished it in June.
consideration
Should the applicant’s application for re-crediting of his SLE for BIOL2101 be approved because of “special circumstances”?
13. Section 79-1 of the Act sets out the circumstances in which a person’s SLE can be re-credited. One of the circumstances is that the Tribunal, in reviewing the decision of a higher education provider, is satisfied that special circumstances apply to the person. Under s 79-5(1), special circumstances apply to the person if and only if the Tribunal 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 the unit.
The Guidelines in s 79-5(2) may specify circumstances in which the Tribunal will be satisfied of the matters referred to in paragraphs (a), (b) and (c) above. The Guidelines provide guidance to those who administer the Act. Whilst I am not bound to apply them (see Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409), they will usually be applied unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645. In the present case, there is no material before me to indicate that the Guidelines should not be applied.
14. As was submitted by Ms Linacre, the test in s 79-5(1) is a strict test. Special circumstances apply if and only if the Tribunal is satisfied as to the matters regarding the circumstances that are referred to in paragraphs (a), (b) and (c) of s 79-5(1). FSMN asserted that, because of his father’s “unpredictable” illness in early June 2006 and the distress and psychological trauma that he suffered as a result, it was impractical for him to complete the examination requirement for BIOL2101. He argued that the Act was put in place for students in his situation and, like him, various professionals (student counsellors, psychologists and doctors) felt that he easily fell under what would be considered as “special circumstances”.
15. His evidence was that he was distracted and not able to apply for supplementary examinations or consider “bureaucratic matters” of the University. Although there had been a tragic event, he had been advised to at least contact the University. At one stage, he said he had not contacted the University about supplementary examinations. He said he was fairly sure he had not passed BIOL2101 but, when he did enquire at the University, it was not about supplementary examinations. However, later he said he had contacted the University and it was suggested that he should sit supplementary examinations. But, he was never advised about the process or that he would actually be able to sit for the examinations. When asked whether he had sat for supplementary examinations before, he said he could not remember.
16. FSMN’s further evidence was that he had sought an extension for his assignment in HLTH3001, which was granted for a period that required the assignment to be due within the June examination period. In my view, this action shows that he was aware of and engaged with the University’s administrative processes in relation to the examination in this unit and what was required of him during the examination period. It would suggest that he was not so psychologically impaired or distressed that he was unable to pursue the administrative processes that dealt with assignment extensions. In relation to the evaluations by the University psychologist/student counsellor, I accept his evidence that, during those evaluations, there was no discussion about academic issues or supplementary examinations.
17. The evidence before me is that FSMN was doing well in BIOL2101 up to the time of his father’s illness. He did not apply for a supplementary examination in any of the units in which he was enrolled in Semester 1, 2006 as he was trying to deal with trauma and not University or academic matters. However, I note that he obtained supplementary examinations in other units, which were due to him obtaining a 45 percent or above mark and being granted automatic supplementary examinations. He was obviously aware of the process involved in obtaining supplementaries. The University psychologist did not discuss examinations or studies with him. The meetings focussed only on his psychological wellbeing. Based upon her assessment, the psychologist determined that he was unable to concentrate and focus on his studies. However, this does not explain why FSMN failed to apply for a supplementary examination on compassionate grounds. He simply determined that he would resit the examination in BIOL2101 afresh and get better results next year or Semester.
18. The further evidence was that FSMN’s brother, who was aged 20 at the time, and his mother were also residing at home, and that normally they would assist and share with him the day-to-day activities of running the home. Although FSMN had some additional duties because of his father’s illness, there was a support network available to him at home to assist him. In fact, that same support network was available to care for his father at the times when FSMN sat for the examinations in the units he was studying. As Ms Linacre submitted (and I accept) there was some planning in process that enabled FSMN mentally to appreciate that he would have to attend examinations during the relevant period in June, that his father was not solely reliant on him, and that other people were able to administer care, when required.
19. I note the assessment policies and procedures of the University that are contained in Exhibit R3. In particular, paragraphs 12 and 17 of the document set out the circumstances for supplementary assessment, including circumstances for assessment on compassionate or medical grounds. The policies and procedures document sets out deadlines that are imposed and the periods in which students must apply for supplementary examinations. In his evidence, FSMN said he was “pretty sure” that he had failed his examinations. As he had not prepared for the examinations, he was not confident of passing. In this context, it is difficult to comprehend that he went into the examinations without having considered, after his father’s illness and prior to the examinations (which was at least a 2 week period), the prospect of engaging in the supplementary examination process.
20. The issue of special circumstances has been considered in numerous cases, both in Courts and in this Tribunal. I was referred to two such cases which demonstrate the different considerations that may be taken into account in determining whether circumstances are “special”. In Re Hill and Secretary, Department of Family and Community Services [1999] AATA 909, the circumstances of the applicant there were found to be special. He had received a lump sum compensation payment and the question was whether there were special circumstances, such that part or all of the lump sum should be treated as not having been made. The Tribunal accepted medical evidence that the applicant, who was being treated for severe depression, was capable of rational decision-making, but that his cognitive functioning was impaired by his medication and depression. He had trouble thinking rationally and exhibited confusion and difficulty with decision-making. The Tribunal found that special circumstances existed and accepted that the applicant had impaired cognitive functions.
21. Although his father’s illness was distressing and traumatic, there was no evidence before me, whether medical or otherwise, to suggest that he had impaired cognitive functions, to the point that he could not engage in day-to-day activities. As already mentioned, he had taken steps to arrange for assignment extensions in HLTH3001 and had reasoned in his own mind that, if he failed his examinations, he would resit them again.
22. In Re Alexandra Crowell and Secretary, Department of Education, Science and Training [2006] AATA 267, the factual circumstances were somewhat similar to those of FSMN. There, the Tribunal considered whether the stress that the applicant was suffering was special circumstances for the purposes of the Higher Education Funding Act 1988, which was the legislation that preceded the Act in 2003. Because of the uncertainty associated with her partner’s interstate transfer with the ADF and her child’s illness, the applicant said that she became “stressed out” and had difficulty coping with what was happening. As a result, she was unable to engage in day-to-day rational decision-making and manage her affairs. At paragraph 32 of his reasons, Member Dr E K Christie said:
“32. The problem with Mrs Crowell’s evidence, in this regard, is that there is no medical opinion evidence before the Tribunal that identifies the medical condition (including any medication) that Mrs Crowell may have suffered at this time; and, most importantly, no medical opinion on the impacts of this condition on Mrs Crowell’s capacity to make rational decisions to manage her day to day affairs (Dean’s case). During the hearing the Tribunal sought to exert its inquisitorial powers to pursue this issue with Mrs Crowell’s medical practitioner. However, this approach was not possible as Mrs Crowell’s evidence was that she did not see any medical practitioner during this period. Without such medical opinion, the Tribunal cannot address this issue objectively. Accordingly, based on the available evidence and information, the Tribunal can make no other conclusion than to find that Mrs Crowell’s ‘stress/anxiety’ state in September – December 2004 does not justify the description of ‘special circumstances’. The evidence and information before the Tribunal cannot lead to a conclusion that Mrs Crowell’s ‘stress/anxiety’ state represented circumstances ‘beyond her control’ and so led to her not withdrawing by the HECS Census date. Nor, based on the evidence and information before the Tribunal, can it be concluded that the ‘stress/anxiety state’ represent circumstances that were ‘unusual’, ‘uncommon’ or ‘exceptional’ or to take her case ‘out of the ordinary’.”
23. The Tribunal sympathises with FSMN and the difficult position he found himself in with his examinations, following his father’s illness. However, the Tribunal is not satisfied that his circumstances placed him under such stress that it was impracticable for him to complete the requirements for BIOL2101. His circumstances were not “beyond his control” or circumstances that were either “unusual”, “uncommon” or “exceptional”, or sufficient to take his case “out of the ordinary”. In terms of the conjunctive requirements of s 79-5(1) of the Act, paragraph (c) of that section has not been complied with.
24. For all of the above reasons, the Tribunal concludes that the applicant’s application for re-crediting of his SLE should not be approved.
decision
25. The Tribunal affirms the decision under review.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: ..........J Coulthard.............................................
AssociateDate of Hearing 31 July 2008
Date of Decision 24 November 2008
Advocate for the Applicant Self-representedSolicitors for the Respondent Ms A Linacre
Clayton Utz Lawyers
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