Hale and Secretary, Department of Education and Training

[2018] AATA 1616

Hale and Secretary, Department of Education and Training [2018] AATA 1616 (7 June 2018)

Division:GENERAL DIVISION

File Numbers:         2017/1487

2017/3402

Re:Caralyn Hale

APPLICANT

AndSecretary, Department of Education and Training

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:7 June 2018

Place:Adelaide

The Tribunal affirms the decisions under review.

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

Senior Member B J Illingworth

CATCHWORDS

HIGHER EDUCATION – Higher Education Contribution Scheme – Application for remission of HECS HELP debt – Whether "special circumstances" existed – Whether applicant’s circumstances made it impracticable for the applicant to complete the requirements for the unit of study – Decision under review affirmed.

LEGISLATION

Higher Education Support Act 2003, ss 36-20(1), 36-21, 87-1, 90-1, 93-1, 96-1, 238-10(1)

Higher Education Support Act 2003 – Administration Guidelines 2012, Ch 3

CASES

Zabaneh and Secretary, Department of Education and Training [2016] AATA 569

REASONS FOR DECISION

Senior Member B J Illingworth

7 June 2018

INTRODUCTION

1. In 2016 the Applicant was enrolled in two courses (“Units”) at a university (“University”) with Commonwealth assistance, within a Bachelor of Nursing namely:

   (i)Experiential Learning Activity: Transition to Practice Practicum 5 – census date 22 April 2016 (“Application 2017/1487”); and

   (ii)Becoming a Registered Nurse – census date 31 August 2016 (“Application 2017/3402”).

   Application 2017/1487

2. This Unit (“the first Unit of study”) commenced in or about June 2016 with a number of Pre‑Clinical Workshops and then each week from 18 July 2016 the Applicant was to undertake eight Clinical Placements in relation to different training disciplines.

3. The Applicant was unwell and provided medical certificates together with a short report from her treating doctor dated 9 June 2017.[1]  The doctor reported that the Applicant was unwell for six days of her placement and missed four shifts.  Those periods were :

   (a)17 August 2016 – migraine;

   (b)26 to 29 August 2016 inclusive – migraine with associated vomiting; and

   (c)8 and 9 September 2016 inclusive – gastroenteritis – and not to return to the hospital for 48 hours post gastroenteritis consistent with hospital protocol.

   [1]     Exhibit 2, Supplementary T-documents for Application No. 2017/3402, ST2.

4. The Applicant satisfactorily completed four of the eight Clinical Placements between 18 July and 14 August 2016 and provided to the Tribunal records of those completed placements in the disciplines of (i) Managing Medication Administration, (ii) Managing the Care of a Client‑Patient, (iii) Teaching a Client‑Patient, and (iv) Teaching of a Colleague.  No records were produced in relation to the remaining Clinical Placements.

5. The remaining four Clinical Placements were as follows:

   (a)Week 5 – between 15 and 21 August 2016.  The Applicant had one day of certified illness namely 12 August 2016.

   (b)Week 6 – between 22 and 28 August 2016.  The Applicant had three days of certified illness namely 26 to 28 August 2016.

   (c)Week 7 – between 29 August and 4 September.  The Applicant had one day of certified illness namely 29 August 2016.

   (d)Week 8 – between 5 and 11 September 2016.  The Applicant had two days of certified illness namely 8 and 9 September 2016.

6. At the conclusion of Clinical Placements the Applicant was to complete a Clinical Competency Assessment due on 18 September 2016.  This was not completed.

7. The Applicant says that she did not complete the last four placements due to her ill health. However the University identified that the Applicant had performance deficits in the areas of medication, time management, documentation, and understanding patients’ conditions.  The University decided that the Applicant needed to undertake a Clinical Challenge because of those deficiencies.

8. The purpose of a Clinical Challenge is to assist a student to recognise areas of deficiency, so that the student can focus on improving in those areas and avoid a fail grade for the Unit of study.

9. A student is offered only one Clinical Challenge Contract in each Unit of study.  If the student fails to complete the Clinical Challenge Contract, or completes it successfully but later practises below the standards expected to pass the Unit of study, a fail grade will be recorded and the student removed from the placement.

10. A Clinical Challenge is evidenced by a Clinical Challenge Contract which is developed in response to identified deficits in student nursing practices including in respect of a clinical placement venue.  The clinician and the lecturer/clinical facilitator should discuss the student’s performance prior to implementing the Clinical Challenge.

11. A Clinical Challenge Contract was created in respect of the Applicant addressing identified areas of deficiency.  The Contract was signed by the Applicant and the Clinical Facilitator on 30 August 2016, the day after she returned from the second period of ill health.  The start date was Wednesday 31 August 2016 and finish date 9 September 2016.

12. The Applicant did not satisfactorily complete the Clinical Challenge Contract and received a fail grade.  She was again unwell for the last two days of the Contract namely 8 and 9 September 2016. However, under heading “Final Outcome” within the Clinical Challenge Contract, the Clinical Facilitator comments dated 19 September 2016 read:

    Unfortunately [the Applicant] has not successfully redeemed her clinical challenge [the Applicant] was not always transparent with the RN that she worked with regarding the clinical challenge and reporting to the RN about her patient’s medical conditions/surgeries and medications etc.

    Staff have not been able to allocate [the Applicant] a full patient load due to her being able to manage a smaller patient load (1-2 patients) independently.

    [The Applicant] was on sick leave the last two days of her clinical placement.  She has refused to sign this document today citing that the contract’s completion date was the 09/09/16 and she can’t sign it after that date.[2]

    [2]     Exhibit 1, T-documents for Application No. 2017/1487, T14/106.

13. In the Final National Competency Assessment Schedule Appraisal dated 19 September 2016 and signed by the Clinical Facilitator, it is reported, amongst other things, that:

    [The Applicant] has completed an eight week clinical placement, … but unfortunately has not achieved an independent level in all areas of the ANMC competencies and has not been successful in achieving her clinical challenge and therefore has not passed this clinical placement.

    [The Applicant’s] confidence began to increase mid placement and she began to develop in the areas of demonstrating initiative, was requiring less prompting and was improving in her time management and therefore took an increased patient load and was assessed at a supervised level (overall) mid placement.  However some deficiencies were identified in relation to her knowledge around patient diagnosis/procedure and medications, clinical documentation, and showing initiative and has required a lot of support and prompting throughout her placement which has culminated in an assessment of assisted/supervised overall.

    [The Applicant] endeavours to be reflective in her practice and take on board feedback, however it hasn’t always translated to timely improvements in practice.  [The Applicant] is a caring student who is respectful and professional in the way that she cares for patients, and I wish her all the best for her future studies/clinical placement.[3]

    [3]     Exhibit 1, T15/109.

14. In the notification to the Program Director, Bachelor of Nursing dated 7 October 2016 advising of the Applicant’s removal from the placement, the author said

    Evidence:

    ·     Failure to meet the requirement set out for you in a Clinical Challenge;

    ·     Ongoing concerns regarding general, medication, procedural and diagnostic knowledge;

    ·     Inability to consistently demonstrate the ability to provide proficient care for a load of four patients;

    ·     Consistently requiring excess prompting and supervision, not meeting the required Independent level of this placement.

    …

    Recommendation:

    The decision to remove the student from the placement for unsafe practice is supported by the University of South Australia Assessment Policies and Procedures (2015) Section 4: Practicum, Field and Clinical Placements dot point below:

    4.5  Unsatisfactory performance on a placement

    4.5.1  Unsatisfactory performance may include one or more of the following:

    a.  failure to meet the assessment requirements as detailed in the course outline

    b.  failure to adhere to the professional standards and workplace requirements of the placement provider

    c.  incomplete or late completion of placement documentation (eg journals, case notes etc) unless an extension has been agreed by the course coordinator.

    d.  failure to discuss critical incidents or issues of concern with the placement supervisor or course coordinator

    I therefore recommend that this student receives a FAIL grade for this clinical course and be required to undertake on-campus remedial work prior to proceeding to another attempt at this placement.[4]

    [4] Exhibit 1, T15/107-108.

15. On 30 October 2016 the Applicant applied to the University for remission of her HECS‑HELP debt under s 36-20 of the Higher Education Support Act 2003 (“the Act”) in respect of the first Unit of study.

16. On 6 December 2016, the University declined the application.  The Applicant requested for a review of the University’s decision by a Review Officer. 

17. By letter dated 20 February 2017, the University advised of its decision to affirm the decision and the reasons for doing so.

18. On 16 March 2017, the Applicant applied to this Tribunal for a review of the University’s decision.

    Application 2017/3402

19. This Unit (“the second Unit of study”) commenced on or about 15 August 2016 and concluded on or about 30 October 2016.  It comprised a number of online computer tutorials with two self‑directed study assignments namely:

    (a)Assignment 1 Critical Analysis Paper – due 9 September 2016 at 5.00pm; and

    (b)Assignment 2 Reflective Paper – due 21 October 2016 at 5.00pm.

    The first and second Units of study overlapped between 15 August and 9 September 2016.

20. The Applicant had health and personal circumstances which she said impacted on her ability to complete the second Unit of study and complete her assessments on time, namely:

    (a)The conditions referred to in paragraph 3 above, that is migraine with associated vomiting and gastroenteritis; 

    (b)From 10 October to 23 October 2016 inclusive, a lower back pain condition with sciatic involvement;[5]

    (c)On or about 26 October 2016 the Applicant’s partner’s health deteriorated. He was admitted to hospital on 31 October 2016 and was subsequently diagnosed with shingles on 3 November 2016;[6] and

    (d)The Applicant said she was her partner’s sole carer.

    [5]     Exhibit 3, Report of Dr Lucinda Rozendaal dated 9 June 2017.

    [6]     Exhibit 2, ST4/276-278.

21. The Applicant applied for and was granted an extension of time within which to complete both assessments.  Both were submitted and both received a mark of Failed 1.

22. On 26 December 2016, after receiving the mark for both assignments, the Applicant applied to the University for the remission of her HECS-HELP debt under s 36-20 of the Act in respect of the second Unit of study.

23. On 3 March 2017, the University declined the application for remission of the debt.  The Applicant requested for a review of the University’s decision by a Review Officer. 

24. By letter dated 17 May 2017, the University advised of the decision to affirm the decision and the reasons for doing so.

25. On 11 June 2017, the Applicant applied to this Tribunal for a review of the University’s decision.

26. The hearing before me dealt with both applications for review of the first and second Units of study.  At the request of both the Applicant and the Respondent, the hearing was conducted by telephone.  The Applicant represented herself and the Respondent was represented by Mr L Holcombe on instructions from HWL Ebsworth Lawyers.

27. I admitted into evidence the T‑Documents in relation to both applications together with the supplementary documents provided by the Applicant on 25 August 2017.

    THE ISSUE FOR THE TRIBUNAL

28. The issue for determination by the Tribunal in respect of each application is whether there are “special circumstances” that applied to the Applicant so as to allow her to have her HECS-HELP debt remitted.  The question of “special circumstances” requires an assessment of whether the Applicant’s circumstances satisfy the requirements of ss 36‑20(1)(d) and 36‑21(1) of the Act.

29. I note that at the hearing on 6 March 2018, in respect of both applications, the Respondent accepted that the provisions of s 36-21(1)(a) and (b) of the Act were satisfied, and submitted that the issue in both applications was whether the Applicant satisfied s 36-21(1)(c) of the Act.

30. The Respondent submitted that the ultimate issue for the Tribunal was whether the Applicant’s health and personal circumstances were such that it was impracticable for her to complete the course.  I agree with that submission.

    THE STATUTORY FRAMEWORK

    The Act

31. Under s 36-20 of the Act, a person can apply to a higher education provider for the remission of the person’s HECS-HELP debt in respect of a unit of study. Subsection (1) of s 36-20 sets out the circumstances in which a higher education provider must, on the Secretary’s behalf, determine that s 36-20 applies to a person. Relevantly, paragraphs (d) and (e) of s 36-20(1) state that the higher education provider must determine if:

    (d)the provider is satisfied that special circumstances apply to the person (see section 36-21); and

    (e)    the person applies in writing to that provider for either or both:

    (i)     the repayment of any amounts that the person paid in relation to his or her student contribution amount for the unit; or

    (ii)    the remission of the person’s HECS-HELP debt in relation to the unit.

32. In relation to “special circumstances”, sub-ss(1) and (2) of s 36 of the Act relevantly provide:

    36-21Special circumstances

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

    (a)are beyond the person’s control; and

    (b)do not make their full impact on the person until on or after the census date for the unit of study 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 Administration Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines.

    The Administration Guidelines 2012

33. The Administration Guidelines 2012 (“the Administration Guidelines”) are a legislative instrument within the meaning of s 5 of the Legislative Instruments Act 2003 and as such are binding on a decision‑maker.  Section 36-21(2) of the Act also provides that a decision under s 36-21 “must be in accordance with” the Administration Guidelines.  In considering whether the Applicant fulfilled the above requirements, I must also have regard to the terms of the Administration Guidelines. 

34. Section 238-10(1) of the Act provides that the Minister may, by legislative instrument, make guidelines of various kinds, including the Administration Guidelines.  Relevantly, Ch 3 of the Administration Guidelines deals with “special circumstances” as follows:

    3.1     PURPOSE

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

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

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

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

    3.5     CIRCUMSTANCES BEYOND A PERSON’S CONTROL

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

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

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

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

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

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

    (c)on or after the census date.

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

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

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

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

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

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

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

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

    (b)complete the required assessable work; or

    (c)sit the required examinations; or

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

    DID SPECIAL CIRCUMSTANCES APPLY TO THE APPLICANT SUCH THAT IT WAS IMPRACTICABLE FOR HER TO COMPLETE THE REQUIREMENTS FOR THE UNIT?

    The Applicant’s evidence

35. The Applicant gave evidence in which she said the following:

    (a)The onset of her illness was from 18 July 2016 and, in respect of the first Unit of study, on the three occasions outlined in the medical certificate from her treating medical practitioner, she was unable to attend her Clinical Placements and undertake her study.

    (b)The three periods were as follows:

    (i)17 August 2016 – suffered migraine and vomiting and took medication.  The next day she returned to her Clinical Placement;

    (ii)26 August – 29 August 2016 inclusive.  She again sought medical assistance.  She returned to work, albeit not fully recovered.

    (iii)8 and 9 September 2016 – vomiting.

    (c)The Applicant said she was unable, due to her ill health, to reach her full potential and other than the periods of certified ill health, she at times remained unwell but was determined to “soldier on”.

    (d)On returning to her Clinical Placement on 30 August 2016, the Applicant spoke to the Clinical Facilitator responsible for her first Unit of study.  They discussed the Applicant entering into a Clinical Challenge Contract.  The Applicant knew the purpose of a Clinical Challenge Contract but said that until that time she was not aware of any issue with her performance.

    (e)The Applicant did not take issue with the Clinical Challenge Contract coming into existence because she felt compromised.  She signed the Clinical Challenge Contract without complaint.

    (f)The Applicant could give no explanation why any criticism could be properly directed at her, and said that the only time any possible issue may have arisen with her performance, was during two shifts when her ward was short‑staffed.

    (g)After the Clinical Challenge Contract came to an end, the Applicant spoke with two registered nurses and confided in them her concerns about being required to engage in that contract.  There was no further evidence about that discussion with those two nurses.

    (h)The second Unit of study was an online lecture program with two assignments.  That unit of study ran from 15 August 2016 to 30 October 2016.  The two units of study overlapped between 15 August 2016 and 9 September 2016. Hence the sickness certificate provided by the treating medical practitioner was relevant to both units of study.

    (i)The online lectures were repeated on a number of occasions during each week, in case students had other commitments which may have clashed with a particular lecture time.  This provided flexibility for those who were undertaking the unit of study and enabled students to coordinate the lectures taking into account other timetable commitments.

    (j)The Applicant’s first migraine occurred two days after she started this second Unit of study.  She said the periods of ill health that prevented her attending her Clinical Placement also prevented her engaging in her online lectures and working on her assignments.

    (k)The Applicant said her ability to satisfactorily complete the second Unit of study was compromised by two additional events, namely:

    (i)the Applicant suffered back pain and on 17 October 2016 her medical practitioner certified her unfit from 10 October 2016 to 23 October 2016; and

    (ii)on 26 October 2016 the Applicant’s partner’s health deteriorated and on 31 October 2016, the day after the nominated completion date for the second assignment, he was admitted to hospital.  He was subsequently diagnosed with shingles on 3 November 2016.  The Applicant was his sole carer.

    The Applicant said it was impracticable to satisfactorily complete the online course and assignments.

    (l)Between 9 September 2016 and 30 October 2016 the Applicant attempted to go online two to three times to undertake her lecture or tutorials.  She said she connected with and listened to the tutorials but did not participate in them.  She said that she had a few technical issues or was not well enough.

    (m)The Applicant was required to complete and submit two assignments, namely:

    (i)Assignment 1- A Critical Analysis paper due 9 September 2016 at 5:00pm; and

    (ii) Assignment 2 – Reflective Paper due 21 October 2016 at 5:00pm.

    (n)The Applicant requested, and was granted, an extension of time to complete each assignment.  She completed and submitted both.  They were not of a sufficient standard and she failed.  The Applicant said they were of a poor quality because of her ill health and other personal issues involving her partner, which impacted upon her ability to complete them to the required standard.

    (o)The Applicant made an inquiry about being given a supplementary assignment, but this was declined because her grade of ‘Fail 1’ was close to a grade of ‘Fail 2’.  The latter grade would have precluded a student being given a supplementary assignment.

    (p)The Applicant said that during the period of severe back pain, she was still able to sit and work at her computer for limited periods but not for the same length of time she would have done prior to her back injury. 

1. The Applicant also referred to her Statutory Declaration,[7] which detailed the Applicant’s varying medical conditions and her partner’s ill health which she relied on in submitting that she was unable to complete the course requirements for her first Unit of study and made it impracticable for her to complete the second Unit of study and the assignments to a satisfactory standard.

   CONSIDERATION

   [7]     Exhibit 2, Supplementary T-documents, ST4.

   THE FIRST UNIT OF STUDY

2. I accept that the three periods of certified illness in relation to the first Unit of study resulted in the Applicant’s ability to undertake her Clinical Placement and engage in study being compromised.  Each period was post the census date and beyond the Applicant’s control.  I note that para 3.15.1(a) of the Guidelines explicitly provides that medical circumstances, such as “where a person’s medical condition has changed to such an extent that he or she is unable to continue studying”, can constitute special circumstances that make it impracticable for a person to complete the requirements of a unit of study.

3. However, on the evidence before me, I am not persuaded that the Applicant’s health made it impracticable for her to complete the first Unit of study. In the case of Zabaneh and Secretary, Department of Education and Training [2016] AATA 569, the Tribunal held at [45] that “impracticable” means “not able to be done”. Whilst I acknowledge there were short periods where the Applicant was certified unwell, which would have resulted in the Applicant being unable to complete her placement or study during those short periods, in my view, that does not translate into it being impracticable for the Applicant to complete the whole of that first Unit of study. In other words, her short periods of ill health were not such that completion of this Unit of study was not able to be done. I also make the observation that the Applicant’s evidence on her ill health was very general and lacked detailed explanation.

4. Additionally, there is substantial competing evidence in relation to the Applicant’s competence generally, as evidenced in the report of the Registered Nurse, the Clinical Challenge Contract and the Clinical Facilitator’s notes, that is indicative of another significant reason for not completing the first Unit of study.

5. Given the nature and extent of the Applicant’s deficiencies identified by the Registered Nurse and Clinical Coordinator, I do not accept the Applicant’s evidence that the deficiencies raised related to only two shifts when her ward suffered staffing shortages.  The deficiencies related to, amongst other things, the Applicant’s clinical knowledge and judgment, and had a substantial impact on her ability to satisfactorily complete the first Unit of study.  It is also difficult to see how the Applicant would not have been aware, to a greater extent than she was prepared to acknowledge, that there were performance issues.  The explanation that she “soldiered on” when balanced against the observation of others involved in supervising her placement and observed areas of unsatisfactory performance, means that I am not persuaded that her ill health post the census date meant that the Applicant was unable to complete the first Unit of study including her Clinical Challenge Contract.  I do not accept that such periods of ill health impacted upon her to such an extent, that she was unable to continue with the study and thereby made it impracticable for the Applicant to complete the first Unit of study within the meaning of the Act and the Administration Guidelines.

   THE SECOND UNIT OF STUDY

6. As I understood the Applicant’s submissions, the special circumstances which she contended made it impracticable for her to complete the second Unit of study were firstly, her periods of ill health from August to October 2016 and secondly, her partner’s contraction of and subsequent hospitalisation for shingles in October 2016.  I note that para 3.15.1(b) of the Guidelines explicitly provides that personal circumstances, such as “death or severe medical problems within a family … so that it is unreasonable to expect a person to continue studies”, can constitute special circumstances that make it impracticable for a person to complete the requirements of a unit.

7. The second Unit of study was to commence on or about 15 August 2016 and concluded on 30 October 2016.  I accept that the periods of illness referred to in the medical certificates namely, 17 August 2016 and 26‑29 August 2016, would have impacted upon the Applicant’s study to some extent, including her submission of Assignment 1 - Critical Analysis due on 9 September 2016.  

8. It is not without significance that the Applicant applied for and was granted an extension of time to submit Assignment 1, and that she did submit it.  She received a grade of Fail 1.

9. On the evidence before me in relation to the second Unit of study, I am not satisfied that the Applicant’s ill health either alone or in combination with the health issues of her partner was the reason the Applicant failed to complete the second Unit of study satisfactorily or at all.  The Applicant’s ill health did not mean she was unable to complete her study.  The partner’s ill health occurring at the end of the study period was not such as to make it unreasonable to expect her to complete the Unit of study.

10. I accept the Applicant’s ability to complete Assignment 2 Reflective Paper due on 21 October 2016 was also compromised to some extent by her illness, namely, gastroenteritis on 8 and 9 September, and back condition between 10 and 23 October 2016.  Her partner’s illness, which occurred shortly before and after the due date for the submission of the assignment, I also accept, would have had some impact albeit minimal.  However the Applicant failed to provide detail about the manner in which those factors impacted upon her other than the general assertion that it did so.  That lack of detail was telling and she did not persuade me that those events were of such a consequence that made it impracticable to complete Assignment 2 and the second Unit of study within the meaning of the Act and the Administration Guidelines.

11. The Applicant again sought and was granted an extension of time within which to submit Assignment 2, which she did.  Again, she received a grade of ‘Fail 1’.

12. I also note that in relation to the second Unit of study, the lectures were available online at different times during each week and as such the students were provided flexibility to engage with the lectures.  To the extent that the Applicant tried to access the lectures only two to three times and interacted minimally or not at all because of technical issues of course did not constitute special circumstances which made it impracticable for her to complete her studies.  In my view, the flexibility allowed for by the online delivery of the lectures further supports the conclusion that the Applicant’s or the Applicant’s partner’s periods of ill health did not make it impracticable for the Applicant to complete her studies. The Applicant’s unsatisfactory academic performance is more consistent with the observed deficiencies and lack of self‑motivation observed by the Registered Nurse, to which I have earlier referred.

13. On the evidence before me, I am unable to accept that the ‘Fail 1’ grade for the second Unit of study was a consequence of the Applicant’s ill health such that she was unable to continue her studies.  Nor do I accept that the personal circumstances relating to her partner made it unreasonable to expect her to continue with her studies.  Even when considered together, on the evidence before me, I am unable to accept that those factors made it impracticable for her to complete her second Unit of study within the meaning of the Act and the Guidelines.

    CONCLUSION

14. When the Applicant’s evidence about her health and that of her partner is weighed against the evidence received from the University of South Australia School of Nursing and Midwifery, I am not satisfied on the evidence before me that special circumstances existed that satisfy the provisions of ss 36‑20(1)(d) and 36-21(1)(c) of the Act.  I am not satisfied that it was impracticable for the Applicant to complete the units of study.

    DECISION

15. Accordingly, the Tribunal affirms the decisions under review.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member B Illingworth

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

Administrative Assistant

Dated: 7 June 2018

Dates of hearing:	6 March 2018
Applicant:	In person
Advocate for the Respondent:	Mr L Holcombe
Solicitors for the Respondent:	HWL Ebsworth Lawyers