HMZP and Secretary, Department of Education

[2015] AATA 666

HMZP and Secretary, Department of Education [2015] AATA 666 (4 September 2015)

Division	GENERAL DIVISION
File Number	2014/2741
Re	HMZP
APPLICANT
And	Secretary, Department of Education
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter Dr M Sullivan, Member
Date	4 September 2015
Place	Brisbane

The Tribunal affirms the decision under review.

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Senior Member A C Cotter

CATCHWORDS

EDUCATION – HECS-HELP balance – application for remission of HECS-HELP debt – special circumstances of mental illness and homelessness –– decision under review affirmed

LEGISLATION

Higher Education Support Act 2003 (Cth) s 36-21

Higher Education Support Act 2003 – Administration Guidelines 2012

REASONS FOR DECISION

Senior Member A C Cotter
Dr M Sullivan, Member

4 September 2015

1. The HECS-HELP assistance program is governed by the Higher Education Support Act 2003 (Cth) (“Act”). Under the scheme, a student may, if eligible, be entitled to HECS-HELP assistance for all or part of their tuition fees for units of study for which they are supported. The amount of assistance is paid by the Commonwealth to the student’s higher education provider; effectively, the amount is loaned to the student, who is required to repay it later through the taxation system.

2. Each higher education provider sets a “census date” for each unit of study. Essentially, it is the last date by which students are required to either indicate that they intend to utilise the assistance in respect of a unit of study, or withdraw their enrolment for that unit without incurring a debt in respect of it.

3. Under the Act, a student can, under certain circumstances, apply to their higher education provider for remission of the HECS-HELP debt in respect of a unit of study.[1]

   [1] s 36.20 of the Act.

4. In 2010, the Applicant enrolled in a Bachelor of Business Administration course at the University of Southern Queensland (“USQ”).  He completed a Request for Commonwealth support and HECS-HELP form regarding the course.

5. In February 2014, the Applicant applied to USQ for remission of his HECS-HELP debt in relation to two units of study, namely:

   (a)a Semester 2, 2013 unit of study ( with a census date of 9 August 2013) known as CDS1002-Counselling Skills; and

   (b)a Semester 3, 2013 unit of study (with a census date of 29 November 2013) known as  PSY1010-Foundation Psychology A.

6. USQ declined the applications in respect of both units of study. Those decisions were affirmed in a review decision. Dissatisfied with that decision, the Applicant has applied to this Tribunal for a review.

   ISSUES FOR THE TRIBUNAL

7. In applying for remission of his debt, the Applicant contended that “special circumstances” applied to him.[2] Section 36-21 of the Act relevantly states that, for that purpose, special circumstances apply to a 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] Under s 36-20(1)(d) of the Act.

8. The Minister has also made Higher Education Support Act 2003 - Administration Guidelines 2012 (“Guidelines”) which, among other things, specify circumstances in which a higher education provider will be satisfied of those matters. Under s 36-21(2) of the Act, a decision of a higher education provider under the section must be in accordance with the Guidelines.

9. The issue we are to determine is whether, by reference to those matters, there were “special circumstances” which applied to the Applicant in respect of each of the units of study.

   CONSIDERATION

10. Before dealing with the specific applications for remission, we highlight some of the key provisions of the Guidelines.

11. Paragraph 3.5.1 of the Guidelines provides that a higher education provider will be satisfied that a person’s circumstances are beyond their 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. The situation must be “unusual, uncommon or abnormal”.[3]

    [3] Paragraph 3.5.5 of the Guidelines.

12. As to the requirement that the circumstances did not make their full impact until on or after the census date, the Guidelines provide that the higher education provider will be satisfied 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.[4]

    [4] Paragraph 3.10.1 of the Guidelines.

13. Finally, paragraph 3.15 describes a number of circumstances that will satisfy the higher education provider that the circumstances make it impracticable for the person to complete the requirements of the unit of study. Relevantly, they include the following:

    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;…

14. We deal with each of the applications below.

    CDS1002-Counselling Skills (Semester 2, 2013)

    Application for remission

15. In his application for withdrawal without academic and financial penalty, the Applicant explained his special circumstances as follows:

    Unable to meet demand of study load during semester 2.

    Grief onset was delayed, possibly due to survival behaviours that took priority due to homelessness and living in a car. My brother and I were very close and I needed better stability for the grief process.[5]

    [5] Application for withdrawal without academic and financial penalty dated 7 February 2014, Exhibit 1, T Documents, T 12, page 54.

16. Although the Applicant’s mental health condition was not expressly mentioned in his application, he did attach a medical report from his general practitioner, Dr Michaela Evans, which noted that he had a history of Generalised Anxiety Disorder and Bipolar Disorder.[6] That was accompanied by a medical report in support of the Applicant’s claim for Disability Support Pension, completed by Dr Adem Can on 24 January 2014, which listed Bipolar Affective Disorder II and Generalised Anxiety Disorder as conditions from which the Applicant was suffering.[7]

    Special circumstances?

    [6] Report of Dr Michaela Evans dated 7 February 2014, Exhibit 1, T Documents, T 12, page 55.

    [7] DSP medical report of Dr Adem Can dated 24 January 2014, Exhibit 1, T Documents, T 12, pages 56-66.

    Grief

17. There is no doubt that the grief experienced by the Applicant on the death of his brother in a motor vehicle accident in August 2012 would satisfy the first requirement under the Act, in that it was a situation beyond his control. 

18. What is less clear, however, is the impact that event had on the Applicant after the census date of 9 August 2013. There is no evidence that his relevant circumstances worsened after that date, nor that the full effect or magnitude did not become apparent until on or after that date.

19. Understandably, the grief that he experienced formed the basis of his (ultimately successful) application for remission of debts in respect of several subjects in Semester 2, 2012.[8] A clinical psychologist whom he consulted in early 2013 expressed the opinion that he would have been unable to continue with his study since his brother’s death.[9] The Applicant himself acknowledged in his application of December 2012 that he would be engaging with a specialist “in coming weeks” to discuss the grief and his mental state. He hoped to “restructure” by the commencement of Semester 1, 2013.[10] The Applicant’s academic record shows that he in fact commenced his studies again in Semester 1, 2013 and that he successfully completed the subject in which he was enrolled in that semester.[11]

    [8] See Exhibit 2, Supplementary T Documents, ST 2, pages 225-244.

    [9] Report of Dr Sharon Elsley dated 20 February 2013, Exhibit 2, Supplementary T Documents, ST 2, page 241.

    [10] Applicant’s 2012 remission application dated 6 December 2012, Exhibit 2, Supplementary T Documents, ST 2, page 226.

    [11] Exhibit 2, Supplementary T Documents, ST 10, page 266.

20. On the face of the material, there is nothing to suggest that when it came to Semester 2, 2013, the Applicant’s grief had worsened or that its full effect was experienced after the census date in August. While the clinical notes of the Applicant’s general practitioner revealed a couple of consultations (in September and October 2013) around the relevant time, they were for unrelated complaints of a viral illness and chronic sinusitis; there was no mention of the Applicant being afflicted by on-going grief.[12] In fact, when he finally consulted the doctor about his mental health issues, in January 2014, he does not appear to have mentioned the grief from his brother’s death, instead reporting his Bipolar Affective Disorder and Generalised Anxiety Disorder.[13]

    [12] See Exhibit 2, Supplementary T Documents, ST 11, pages 268-269.

    [13] See Exhibit 2, Supplementary T Documents, ST 11, pages 269-270.

21. Similarly, the Applicant managed to complete PSY1020- Foundation Psychology B, the other unit of study in which he enrolled in Semester 2, 2013.[14] Nor was there any difficulty suggested when he enrolled on 14 October 2013 in PSY1010- Foundation Psychology A, for Semester 3, 2013 (which commenced on 11 November 2013).[15] Indeed, under cross-examination, he said that he started that semester “okay”, having completed the initial assessment assignment for it.[16]

    [14] See screenshot of marks for PSY1020, Exhibit 2, Supplementary T Documents, ST 8, page 262.

    [15] See screenshot of Applicant’s enrolment request search, Exhibit 1, T Documents, T 7, pages 43-45.

    [16] See Screenshot of marks for PSY1010, Exhibit 2, Supplementary T Documents, ST 7, page 261.

22. For those reasons, we do not think that the Applicant can satisfy the requirement that the grief which he experienced following his brother’s death made its full impact on or after the census date. Nor do we consider that he has established that those circumstances made it impracticable for him to complete the relevant unit of study, CDS1002-Counselling Skills. We therefore do not consider that this constitutes “special circumstances” under the Act. 

    Mental health condition

23. We have reached a similar conclusion in relation to the Applicant’s long diagnosed mental condition, on which his successful application for remission of debts in respect of units of study in Semesters 2 and 3, 2010 was based.[17]

    [17] See Exhibit 2, Supplementary T Documents, ST 1, pages 196-214.

24. There is no evidence that this pre-existing circumstance worsened or made its full impact after the August 2013 census date. Consequently, we are not satisfied as to the second of the requirements under s 36-21 of the Act.

25. We also note that the Applicant successfully completed the other unit of study he undertook in this semester. In the absence of some explanation or evidence to the contrary by the Applicant, that raises the inference that it was not impracticable for him, by reason of his circumstances, to complete CDS1002-Counselling Skills.

26. Finally, the suggestion that the original diagnosis was inaccurate and that an incorrect medication regime had been prescribed does not affect our conclusion in respect of this unit of study, since those matters occurred some time after the end of Semester 2.

    Homelessness

27. In his closing submissions, the Applicant also urged us to consider the impact of homelessness, as set out in his written applications to USQ.[18] He gave evidence that he experienced homelessness over an extended period “up until September 2012” (that is, prior to the semester in question), and was for various periods living out of his car and “bed hopping”.  However, he was not specific about when those latter episodes occurred, or their frequency, duration or impact. Without that evidence, we cannot be satisfied as to what impact (if any) the claimed homelessness had, either on or after the census date in question.

    Nor can we form any concluded view on whether the claimed homelessness made it impracticable for the Applicant to complete the requirements of this unit of study. In saying that, we are conscious of the fact that he completed the requirements of another unit of study during the same semester and that he had previously completed two units of study in Semester 1, 2013 when homeless. Without knowing the relative circumstances, we cannot be satisfied that the third of the requirements under s 36-21 could be met.

    [18] Application for withdrawal without academic and financial penalty dated 6 February 2014, Exhibit 1, T Documents, T 11, page 51; Application for withdrawal without academic and financial penalty dated 7 February 2014, Exhibit 1, T Documents, T 12, page 54.

    Conclusion

28. It follows from what we have said that we are not satisfied that special circumstances existed in respect of the Applicant for this unit of study. We therefore consider that the decision under review should be affirmed in respect of this unit of study.

    PSY1010-Foundation Psychology A (Semester 3, 2013)

    The Applicant’s application and submissions

29. The Applicant’s application for debt remission was dated 6 February 2014.[19] On its face, it appeared to rely on the same grounds as the application concerning CDS1002-Counselling Skills in Semester 2, 2013, identifying mental health, grief and homelessness as the relevant circumstances. It referred to the same material as the accompanying application in respect of the preceding semester. However, after the original decision was reviewed and affirmed, the Applicant provided further information in support of his application, which altered its emphasis.

    [19] See Exhibit 1, T Documents, T 11, pages 50-51.

30. The Applicant’s letter of 30 March 2014 in respect of both applications attached further documentation that the Applicant said “demonstrates that my condition had not become apparent until recently”. [20] He went on to say that in the circumstances, he could not seek effective and consistent medical support and was receiving inappropriate treatment for his disability.

    [20] See Exhibit 1, T Documents, T 15, pages 79-80.

31. In support of his application, he attached a fresh letter from his general practitioner, Dr Evans. She stated that while he had a history of Generalised Anxiety Disorder and Bipolar Disorder, he had only recently been reviewed by Professor Philip Morris, who questioned the earlier diagnoses and thought that the past treatment might have been inaccurate, and was then treating the Applicant for Attention Deficit Disorder.[21]

    [21] See letter, Dr Michaela Evans dated 26 March 2014, Exhibit 1, T Documents, T 15, page 81.

32. Also attached to the Applicant’s letter were reports from Professor Morris[22] and psychologist Julie Le Franc.[23] Professor Morris gave a presumptive diagnosis of Adult Attention Deficit Disorder. While he noted a possibility of Bipolar II Disorder, he doubted that it was an active condition. He recommended that the Applicant continue with his counselling course with Ms Le Franc and placed him on a trial of Dexamphetamine 5 mg tablets. Ms Le Franc confirmed that testing indicated that the Applicant had a “strong tendency” towards Attention Deficit/Hyperactivity Disorder (“ADHD”).

    [22] Exhibit 1, T Documents, T 15, pages 82-83.

    [23] Exhibit 1, T Documents, T 15, pages 87-89.

33. Based on those diagnoses, the Applicant submitted that he had previously been medicated under an incorrect treatment regime. The use of anti-psychotic or anxiolytic medications in the treatment of ADHD provided no improvement, functionally or symptomatically, and as in his case, could worsen the patient’s condition.[24] In support of that latter submission, he gave evidence at the hearing that he saw the psychiatrist, Dr Adem Can, who confirmed the diagnoses of Bipolar Affective Disorder and Generalised Anxiety Disorder and prescribed him Zoloft .The Applicant reported falling ill after taking that drug for about four to five days, and was treated at Murwillumbah Hospital around 24 January 2014 before discharging himself, against advice.

    Special circumstances?

    [24] Applicant’s Submissions dated 31 July 2015, Exhibit 4.

    Incorrect diagnosis and treatment

34. The ADHD diagnosis by Professor Morris and Ms Le Franc is at odds with the long standing diagnosis of Bipolar Affective Disorder and Generalised Anxiety Disorder by a number of specialists. As no medical evidence was called, it is impossible for us to reconcile that conflict and in particular, determine whether the original diagnosis was mistaken. 

35. However, what can be said, for present purposes, is that the diagnosis of ADHD came some time after the end of Semester 3. Even if that diagnosis were correct, it, of itself, made no difference to the Applicant’s circumstances during Semester 3; he still suffered from the same symptoms that he had experienced for some years and which had been relied upon in support of his previous applications for remission of debts.

36. While the Applicant pointed to the prescription of Zoloft and the adverse reaction he had from it, that incident was not corroborated by any medical evidence. In particular, the clinical notes of the Murwillumbah Hospital were not produced. The only mention we could find of a reaction to Zoloft was in Dr Evans’ clinical notes of a consultation with the Applicant on 7 February 2014.[25] However, even that tends to differ from what the Applicant told us during the hearing. The note talks of the Applicant having “trialled” the drug for two days (not four to five) after which he ceased taking it. No mention is made of a longer period of use, nor of the Applicant’s treatment at Murwillumbah Hospital.

    [25] Records from the Bay Centre Medical Clinic, Supplementary T Documents, ST11, 270.

37. Given the conflicting medical opinions and the lack of any corroborating evidence as to the Applicant’s adverse reaction to Zoloft and the cause of it, we are not satisfied that these circumstances made it impracticable for the Applicant to complete the requirements of the  unit of study. No explanation was given by the Applicant as to why the adverse reaction on about 24 January made it impracticable for him to complete the requirements of the unit of study, especially given that he discharged himself from the hospital’s care, contrary to advice.

    Other circumstances

38. As mentioned earlier, the remaining aspects of the application for debt remission are similar to the application made in respect of the Semester 2 unit of study.  A number of the comments we made in connection with that application are equally apposite here.

39. In particular, it is noted that the Applicant started the semester “okay” and completed his first assessment in December. There is nothing in Dr Evans’ clinical notes that suggests that he was experiencing any difficulties with the course as a result of his mental condition until January 2014, which coincided with his next round of assessment.  However, nothing new is revealed in those notes; they reflect the same circumstances that had been identified previously and which had been the basis of his earlier applications for debt remission. There is nothing to suggest that the circumstances worsened or that their full impact only became apparent after the census date; they were pre-existing.

40. Nor was any evidence led, or explanation advanced, by the Applicant as to why, by reason of the identified circumstances, it was impracticable for him to complete the requirements of this unit of study.

    Conclusion

1. For those reasons, we do not consider that special circumstances existed in relation to the application for remission of debt in relation to PSY1010-Foundation Psychology A. Accordingly, we believe that the decision under review should be affirmed in respect of that unit of study.

   CONCLUSION

2. It follows from what we have said that we do not consider there were any special circumstances which applied to the Applicant in respect of the requests for remissions of debt for CDS1002-Counselling Skills and PSY1010-Foundation Psychology A.

3. The decision under review is therefore affirmed.

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter, Dr M Sullivan, Member

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Associate

Dated 4 September 2015

Date of hearing	5 August 2015
Applicant	In person
Solicitors for the Respondent	Mr Shane Maundrell with Ms Maple Ko