Heath and Secretary, Department of Education, Skills and Employment
[2021] AATA 2280
•14 July 2021
Heath and Secretary, Department of Education, Skills and Employment [2021] AATA 2280 (14 July 2021)
Division:GENERAL DIVISION
File Number:2020/6266
Re:Ms Joanne Heath
APPLICANT
Secretary, Department of Education, Skills and EmploymentAnd
RESPONDENT
DECISION
Tribunal:Senior Member B. Pola
Date:14 July 2021
Place:Brisbane
Pursuant to s43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Respondent dated 14 September 2020.
............................[SGD]............................................
Senior Member B. Pola
CATCHWORDS
HIGHER EDUCATION – Higher Education Contribution Scheme – application for remission of HECS-HELP debt – withdrawal from units of study after census date – exacerbation of mental health condition – whether special circumstances existed – whether circumstances beyond Applicant’s control – whether circumstances made full impact on or after the census date – whether circumstances made it impracticable for the Applicant to complete requirements for the unit of study – decision affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth)
CASES
Montenegro v Secretary, Department of Education [2020] FCAFC 210
SECONDARY MATERIALS
Administration Guidelines 2012
REASONS FOR DECISION
Senior Member B. Pola
14 July 2021BACKGROUND
On 24 July 2020, the Applicant, Ms Joanne Heath, enrolled in two units of study with Southern Cross University (herein referred to as ‘SCU’), despite the period of study having already commenced on 6 July 2020, and the census date falling on 27 July 2020, some three days following her late enrolment[1].
[1] Exhibit 1, T3, page 33; and T5, page 53.
The Applicant withdrew from her units of study on 5 August 2020[2], and applied to SCU for a remission of her HECS-HELP debt[3] of $1,670 detailed below[4]:
[2] Exhibit 1, T9, page 73.
[3] Pursuant to s137-5 of the Higher Education Support Act 2003 (Cth).
[4] Exhibit 1, T14, page 85.
Trimester
Census date
Unit of study
HECS-HELP Assistance
Session 2, 2020
27 July 2020
Introduction to Psychology II
$ 835.00
Session 2, 2020
27 July 2020
Into to Psych Investigations
$ 835.00
$ 1,670.00
The application for remission of the cost of the units of study was declined by SCU (‘original decision’) on 17 August 2020[5].
[5] Exhibit 1, T12, pages 79 to 83.
The Applicant applied for reconsideration of the original decision of SCU, and on 11 September 2020, the remission of the cost of the units of study was again declined by the reviewer. The Applicant was notified by letter dated 14 September 2020 (‘reviewable decision’), which stated that the basis of the decision was that, “the relevant threshold for establishing a basis for remittance of fees has not been met in this case”[6].
[6] Exhibit 1, T17, pages 91 to 96.
On 9 October 2020, the Applicant applied to the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) for review of the reviewable decision[7].
[7] Exhibit 1, T1, pages 1 to 25.
The hearing took place on 17 June 2021, with the Applicant (self-represented), and the Respondent (represented by Ms Subasha Prasad of Minter Ellison), and the mode of the hearing took place by telephone.
The Tribunal considered oral submissions made by the Applicant and Respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (refer to Annexure 1 at the end of these reasons).
JURISDICTION
Decisions by higher education providers regarding a refusal to re-credit a person’s HECS-HELP debt pursuant to s36-20 of the Higher Education Support Act 2003 (Cth) (herein referred to as ‘the Act’) are reviewable decisions pursuant to s206-1 (Item 1A) of the Act.
Applications can be made to the Tribunal pursuant to s212-1 of the Act, for reconsideration of a “reviewable decision” that has been confirmed, varied or set aside pursuant to s209-10 of the Act.
The original decision was made on 17 August 2020. A request for a review of this decision was made by the Applicant, and on 11 September 2020 (which was communicated to the Applicant on 14 September 2020) a decision was made by the Respondent to confirm the earlier decision of 17 August 2020[8].
[8] Exhibit 1, T12, pages 79 to 83; and Exhibit 1, T17, pages 91 to 96.
The Tribunal has jurisdiction to review this application.
ISSUE
The issue before the Tribunal is whether s36-20(1)(d) of the Act applies to the Applicant, that is, whether special circumstances within the meaning of s36-21 of the Act apply to the Applicant?
LEGISLATIVE FRAMEWORK
Section 137-5 of the Act sets out provisions for determining when an individual incurs a HECS‑HELP debt. Importantly s137-5(3) states that an individual incurs a HECS-HELP debt, “immediately after the census date for the unit…”, with s137-5(4) stipulating that remissions of HECS-HELP debts are dealt with in s36-20 of the Act.
Section 36-20(1) of the Act provides that for an individual to apply for remission of their debt from a higher education provider, the following criteria must be met (relevant to the present application is s36-20(1)(d)):
“36-20 Providers to repay amounts—special circumstances
(1)A higher education provider must, on the *Secretary’s behalf, determine that this section applies to a person 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; and
(f)either:
(i) the application is made before the end of the application period under section 36-22; 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.”
Where special circumstances apply to an individual, s36-20(2) of the Act states that the provider must pay the individual an amount equal to their student contribution for the unit of study, and pay the Commonwealth an amount equal to the HECS-HELP assistance the person was entitled to for the unit of study.
Special circumstances are set out in s36-21(1) and (2) of the Act which provides:
“36-21 Special 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; 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 Tribunal observes that all criteria stipulated in s36-21 of the Act regarding special circumstances must be met in order for this test to be satisfied.
The Administrative Guidelines referred to in s36-21(2) of the Act are a legislative instrument made pursuant to s238-10 of the Act. Relevantly, the Administrative Guidelines 2012 (herein referred to as ‘Administrative Guidelines’) have application in the present matter.
The Tribunal refers to a recent decision of the Full Court of the Federal Court of Australia in Montenegro v Secretary, Department of Education [2020] FCAFC 210, with respect to the adoption of Administrative Guidelines, where His Honour Justice Flick stated[9]:
“…Where a provision thus requires that something is to be done “in accordance with” the Administration Guidelines, what is required is that those Guidelines themselves become a “substitute regime” which is to be complied with.”
[9] [25].
His Honour Justice Charlesworth similarly stated in his reasons that the Guidelines form part of the statutory scheme for consideration by decision makers[10]:
“…For my part I do not consider the Guidelines to be “relevant considerations” in the sense advanced by counsel for the appellant in the course of submissions. Rather, they form a part of the statutory scheme that conferred, defined and conditioned the decision-maker’s powers…”
[10] [64].
In view of the above, the Tribunal ought have regard to the Administrative Guidelines. The Tribunal has transposed the relevant provisions:
“3.5 CIRCUMSTANCES BEYOND A PERSON’S CONTROL
3.5.1 A higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.
3.5.5 The situation referred to in paragraph 3.5.5 [sic] must be unusual, uncommon or abnormal.
3.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE
3.10.1 A 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.
3.15 CIRCUMSTANCES THAT MAKE IT IMPRACTICABLE FOR THE PERSON TO COMPLETE THE REQUIREMENTS
3.15.1 A 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.”
CONSIDERATION
The evidence before the Tribunal confirms the Applicant chose to enrol in both of their units of study three weeks into the period of study, and three days prior to the census date (being 27 July 2020).
The Applicant indicated that prior to their enrolment being approved, they were aware of the work required of them. The Tribunal refers to an email exchange between the Applicant and SCU on 24 July 2020, where SCU clearly articulated the workload required by the Applicant to catch up, with the Applicant acknowledging they were “fine” with this undertaking[11]:
(i)Extract of email from SCU to Applicant at 11.08am on 24 July 2020:
“… Beginning these two content-rich units at the end of week 3 would mean having more than 30% more work to do in each for the rest of the session - a workload more of less the equivalent of taking 3 units instead of 2. In BHS11003 at least, the first assessment task is open and due this Sunday (26/07). I would want this to be pointed out to the student explicitly and for them to acknowledge they understand that and will be prepared to put in some very intense study time immediately…”
[Bold in original]
(ii)Extract of response from Applicant to SCU at 11.29am on 24 July 2020:
“… Thank you so much for the quick response! Yes, that's all fine, I'll study today/all weekend and get that assignment in on Sunday (assuming I can access the necessary readings online)…”
[11] Exhibit 1, T6, page 57.
The Applicant stated to the Tribunal that in the week following the census date of 27 July 2020, (around 1 and 2 August 2020), the Applicant had experienced a deterioration in their mental health, which exacerbated their pre-existing mental health conditions of anxiety and depression to an extent that they were no longer able to undertake their units of study, and they subsequently withdrew from their studies on 5 August 2020, nine days after the census date[12].
[12] Transcript 17 June 2021, page 15, lines 44 to 47; and page 16, lines 1 and 2.
Medical evidence submitted to the Tribunal corroborates the Applicant’s claims they have had a long history of mental health conditions relating to depression and anxiety for which they have sought clinical assistance. The Tribunal refers to the following medical evidence tendered by the Applicant to the Tribunal:
(i)A letter from Ms Bronwyn Sargent, Clinical Psychologist, dated 26 August 2020, which states:
“Joanne was referred to me by her GP, Dr Johanna Schafer, in February 2020. At the time of meeting her she had left her job due to bullying and her relationship had recently ended. Joanne described feeling lost and undecided about her future. Joanne has a history of suffering from anxiety and depression”[13].
(ii) A letter from Dr Johanna Schafer, General Practitioner, dated 19 August 2020, which states:
“Ms Joanne Heath has been attending this clinic since early 2018. During this time, Joanne has suffered from anxiety and low mood, and has been treated for such”[14].
[13] Exhibit 1, T1, page 25.
[14] Exhibit 1, T13, page 84.
Do special circumstances apply?
The issue for the Tribunal to consider is whether special circumstances apply to the Applicant. That is, whether the Applicant has demonstrated to the Tribunal that for the units of study in question, their circumstances pursuant to s36-21(1)(a) to (c) of the Act:
(a)were beyond their control; and
(b)did not make their full impact on them until on or after the census date; and
(c)made it impracticable for them to complete the requirements for the unit of study in the period during which they undertook or were to undertake the unit.
Were circumstances beyond the Applicant’s control?
The Administrative Guidelines (transposed in earlier reasons of this decision) state that circumstances are considered beyond the Applicant’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 (observing that the situation must be unusual, uncommon or abnormal)[15].
[15] Administrative Guidelines, paragraph 3.5.
The Applicant in submissions before the Tribunal stated that they had enrolled in their studies with the best intentions of completing them, and that they were fully aware of the workload they were to take on. The Applicant contended that she did not foresee that she would suffer from the deterioration in her mental health to the extent to which she had, resulting in her delayed decision to withdraw from her studies on 5 August 2020[16].
[16] Transcript 17 June 2021, page 16, lines 14 to 45.
With respect to the Applicant’s mental health conditions from which she suffers, the Tribunal has earlier referred to medical evidence which corroborates the Applicant’s claims that she has had these conditions for some time, that is, the Applicant’s mental health conditions were pre-existing medical conditions that were in place prior to her enrolment in the units of study.
This point is confirmed in submissions from the Applicant’s sister (Ms Rachel Pearson) to the Tribunal in an email dated 21 January 2021, where she stated, “This statement confirms my sister Joanne has had experience with anxiety and to a lesser extent depression throughout the greater part of her life…”[17].
[17] Exhibit 6.
Further to this, submissions before the Tribunal from the Applicant confirm they have previously experienced fluctuations in their mental health conditions (in early 2020) following a series of unfortunate events in the Applicant’s life including a relationship breakdown and loss of employment, and moving house in order to make a fresh start[18].
[18] Exhibit 3, page 1.
The Tribunal is of the view that the Applicant’s failure to withdraw by the census date was not beyond the control of the Applicant in circumstance where (1) the Applicant’s mental health conditions are longstanding; (2) she has suffered from “episodes” or fluctuations of these mental health conditions in the past; and (3) the requirements and workload of the units of study she had agreed to undertake were made abundantly clear to her prior to her late enrolment, which she acknowledged.
The Tribunal is of the view that the situation experienced by the Applicant in early August 2020 could not reasonably be described as, “unusual, uncommon or abnormal”, as required by the Administrative Guidelines in circumstances where (1) the Applicant chose to enrol in two units of study three weeks into the commencement of the study period; (2) they had knowledge of their pre-existing medical conditions and that they were susceptible to fluctuations in these conditions; and (3) the Applicant’s late enrolment was self-imposed.
The Tribunal is of the view that (1) a reasonable person would not consider that the circumstances the Applicant found themselves in were beyond the Applicant’s own control; and (2) the choice made by the Applicant to enrol late into the commencement of her studies would have likely exacerbated her underlying medical conditions[19].
[19] Administrative Guidelines, paragraph 3.5.5.
Did circumstances make their full impact on or after the census dates?
With respect to the application of s36-21(1)(b) of the Act regarding whether the Applicant’s circumstances made their full impact on or after the census date; the Administrative Guidelines state that a 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[20]:
(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.
[20] Administrative Guidelines, paragraph 3.10.
The evidence before the Tribunal indicates the Applicant had pre-existing medical conditions before the census date. The question is whether the Tribunal is satisfied that the Applicant’s conditions worsened on or after the census date; or if the full effect or magnitude of the conditions became apparent on or after the census date.
A letter from the Applicant’s General Practitioner Dr Schafer of 19 August 2020, refers to the Applicant as having attended their clinic since 2018, confirming the Applicant had received treatment for their mental health conditions in the past (and that more recently the Applicant had been through a “rough patch”). Dr Schafer had stated the following in her letter[21]:
“…Joanne tells me that she recently enrolled in an online course, however her anxiety flared to the extent that she was unable to concentrate at all on the required reading materials or assignments. She is seeking to withdraw from her studies. It would be appreciated [sic] if you could take the above into consideration when assessing her application”.
[21] Exhibit 11.
A Medical Certificate of 1 October 2020 by Dr Kathryn O’Sullivan states that the Applicant had attended the clinic for appointments regarding their anxiety prior to and following the census date of 27 July 2020, the Tribunal refers to the following statement[22]:
“… Her clinic visits attending for her anxiety were 9th July, 20th July, 3rd August, 24th August, 26th August, 3rd September, 2020. In my opinion, based on the information available at the time of writing, she is unfit to apply herself to study Psychology, due to concentration issues and overwhelm of taking on the 2 units and having to work as well to pay her debts…”
[sic]
[22] Exhibit 12.
Similarly, a letter of 26 August 2020 from the Applicant’s Clinical Psychologist Ms Sargent did not specify when a fluctuation had occurred in the Applicant’s mental health condition, her letter stated that the Applicant was:
“… unable to study after demonstrating the determination to persist for some time but symptoms including: inability to concentrate; irritability; fatigue; poor time management; and disorganization, resulted in her withdrawal. Joanne’s mental health suffered and it was recommended that she reduce stressors and seek more support…”[23].
[23] Exhibit 13.
In circumstances where (1) corroborative medical evidence exists confirming the Applicant’s mental health conditions are susceptible to fluctuations (particularly during periods of stress); and (2) the medical evidence does not identify when the fluctuation or “episode” with respect to their mental health had occurred; the Tribunal is not satisfied that the Applicant’s circumstances made their full impact upon her on or after the relevant census date for her units of study.
Did circumstances make it impracticable for the Applicant to complete requirements of the units of study in question?
With respect to the application of s36-21(1)(c) of the Act, the Administrative Guidelines relevantly state that a 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 “medical circumstances” can be established (for example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying) [24].
[24] Administrative Guidelines, paragraph 3.15.1(a).
The Administrative Guidelines further state that, a person is considered unable to complete the requirements for their study if the person is unable to complete any of their course requirements because of an established circumstance such as “medical circumstances” [25].
[25] Administrative Guidelines, paragraph 3.15.1, second paragraph (d).
The medical evidence tendered to the Tribunal (and transposed in earlier reasons) from Dr O’Sullivan and Ms Sargent suggests that the deterioration in the Applicant’s mental health was such that she would not have been unable to continue with her studies.
The Tribunal is satisfied the Applicant’s mental health condition would have made it impracticable for the Applicant to complete the requirements of their units of study, based on the corroborative medical evidence from Dr O’Sullivan in her Medical Certificate dated 1 October 2020, in addition to the letter of Ms Sargent of 26 August 2020.
Conclusion
For special circumstances to be established pursuant to s36-21(1) of the Act, all limbs must be satisfied (that is, s36-21(1)(a), (b) and (c) of the Act).
Special circumstances apply to a person where it is established that the circumstances (1) were beyond the person’s control; and (2) did not make their full impact on the person until on or after the census date for the unit of study; and (3) made it impracticable for the person to complete the requirements for the unit during the period which the person undertook or was to undertake the units of study.
The Tribunal has found that the Applicant’s circumstances with respect to her mental health conditions would have made it impracticable for her to complete the requirements of her units of study. However, the Tribunal is of the view that the Applicant’s failure to withdraw by the census date was not beyond her control in circumstance where (1) her mental health conditions have been longstanding; (2) she has suffered from “episodes” or fluctuations of these mental health conditions in the past; and (3) the requirements of the study and the workload she had agreed to undertake were made abundantly clear to her prior to her late enrolment, which she acknowledged.
Further, the Tribunal was not satisfied the Applicant’s circumstances made their full impact upon her until on or after the relevant census date for her units of study, due to insufficient corroborative medical evidence to suggest when the exacerbation of the Applicant’s pre-existing medical conditions occurred.
The Tribunal has found that the Applicant has not met not all limbs of the requisite test with respect to s36‑21(1)(a) and (b) of the Act; therefore the Tribunal is not satisfied that special circumstances apply to the Applicant as prescribed by s36-20(1)(d) of the Act. The Tribunal therefore finds the Applicant is not entitled to have her HECS‑HELP debt for the units of study remitted to her pursuant to s36-20(2) of the Act.
DECISION
Pursuant to s43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Respondent dated 14 September 2020.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola.
…………[SGD]………………
Associate
Date: 14 July 2021
Date of hearing: 17 June 2021
Applicant: Ms Joanne Heath (via telephone)
Self-represented
Solicitors for Respondent: Ms Subasha Prasad (via telephone)
Minter Ellison
Annexure 1 – Exhibit Register
EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED 1 T Documents (pages 1 to 129) R - 11 December 2020 2 Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 13) R 24 March 2021 24 March 2021 3 Applicant’s Submissions (two pages) A 21 January 2021 21 January 2021 4 Centrelink Medical Certificate (one page) A 6 January 2021 21 January 2021 5 Statement of Christine Heath (via email) (Applicant’s mother) A 19 January 2021 21 January 2021 6 Statement of Rachel Pearson (via email) (Applicant’s sister) A 21 January 2021 21 January 2021 7 Statement of Attainment: Design and develop assessment tools from Healthy Business Training Academy (three pages) A 18 March 2021 21 January 2021 8 Image of a Certificate IV in New Small Business A 29 March 2018 21 January 2021 9 Imagine of Certificate IV in New Small Business Record of Results A 29 March 2018 21 January 2021 10 Medical Certificate from Dr Kathryn O’Sullivan (one page) A 19 January 2021 15 June 2021 11 Letter from Dr Johanna Schafer (one page) (Duplicated at T13) A 19 August 2020 15 June 2021 12 Medical Certificate from Dr Kathryn O’Sullivan (one page) A 1 October 2020 15 June 2021 13 Letter from Ms Bronwyn Sargent (one page) (Duplicated at T15) A 26 August 2020 15 June 2021
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