IOSEFA and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 317

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 317

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4153

GENERAL ADIMINISTRATIVE  DIVISION		)
Re		SELINA IOSEFA

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr Gordon Hughes, Member

Date30 April 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review. 

(sgd) Gordon Hughes

Member

SOCIAL SECURITY - Higher education – student assistance – entitlement to a re-crediting of FEE-HELP Balance – student unaware that she was enrolled in three units – university records inconsistent with applicant's assertions – no special circumstances to justify re-crediting – decision affirmed.

Higher Education Support Act sections  ss 101-1, 104-25, 104-30, 238-10

Legislative Instruments Act 2003 s 5

Student Learning Entitlement Guidelines

Kanesbi and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 277

REASONS FOR DECISION

30 April 2010  Dr Gordon Hughes, Member

1.      This application seeks a review of a decision by Open University Australia (OUA) not to re-credit the applicant's FEE-HELP Balance in respect of three units  she claimed she was unaware she was enrolled in.  The OUA was acting as a delegate for the Secretary of the Department of Education, Employment and Workplace Relations (the respondent).

2.      On 30 July 2008 the applicant telephoned SEEK Learning and enrolled in four units: ACF 110 (Accounting Fundamentals, Swinburne University), MAR 11 (Marketing Theory and Practice, Monash University (Monash), MAN 11 (Introduction to Management, Monash) and BLW 16 (Introductory Law, University of South Australia (UniSA)).  On the same day, the applicant requested FEE-HELP by filling out an online form.

3.      The subjects ACF 110 and MAR 11 were within Study Period 3, which commenced on 1 September 2008, with a census date of 21 September 2008.  The other two subjects fell within Study Period 4, which commenced on 1 December 2008, with a census date of 21 December 2008.   If the applicant wanted to withdraw from a subject without penalty, in the normal course of events, the withdrawal would have to occur prior to the census date.

4.      On 26 June 2009 the respondent received an application from the applicant to re-credit her FEE-HELP Balance for three units undertaken in Study Periods 3 and 4.  The essence of the applicant's claim was that she did not know she was enrolled in units MAR 11, MAN 11 and BLW 16 as she did not receive any information about those units.  The applicant also indicated that she was suffering hardship since converting from full time to part-time employment in October 2008 in order to provide assistance for her son, who was experiencing developmental problems. 

Legislation

5.      Section 101-1 of the Higher Education Support Act 2003 (the Act) set out the objectives of FEE-HELP Assistance:

A student may be entitled to FEE-HELP assistance for units of study for which he or she is not Commonwealth supported, if certain requirements are met.

The amount of assistance to which the student may be entitled is based on his or her tuition fees for the units, but there is a limit on the total amount of assistance that the student can receive.  The assistance is paid to a higher education provider or, if the student accesses units through Open Universities Australia, that body, to discharge the student's liability to pay his or her tuition fees.

6.      A person's FEE-HELP assistance can, in some situations, be re-credited under Division 104 of the Act.  Section 104-25 of the Act sets out the circumstances in which the higher education provider must, on the Secretary's behalf, re-credit a person's FEE-HELP balance with an amount equal to the amount of FEE-HELP assistance the person received for a unit of study.  There are seven listed requirements in the subsection ( section 104-25(1)).  In this matter, the issue was whether the requirement in section 104-25(1)(c) of the Act was met, namely that:

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

7.      Section 104-30 of the Act states:

(1) For the purposes of paragraph 104-25(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 in the period during which the person undertook, or was to undertake the unit.

(2) If the Student Learning Entitlement Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 79-5(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.

…

8.      With respect to the Student Learning Entitlement Guidelines (the Guidelines) referred to in section 104-30(2), section 238-10(1) of the Act provides that the Minister may, by legislative instrument, make guidelines of various kinds.  The then Minister made the Student Learning Entitlement Guidelines on 21 July 2004.

9.      Chapter 5 of the Guidelines deals with special circumstances as follows:

5.1 PURPOSE

5.1.1 The purpose of this chapter of the guidelines 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 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).

5.5 CIRCUMSTANCES BEYOND A PERSON'S CONTROL

5.5.1 The 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.

5.5.5 This situation must be unusual, uncommon or abnormal.

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

5.10.1 The 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.

10.     Section 104-30(2) of the Act provides that a decision of a higher education provider under section 104-30 must be in accordance with the Guidelines.

11. The Guidelines were made by the Minister under section 238-10 of the Act and were gazetted on 27 July 2004. They are a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003.

12.     The respondent submitted, and the Tribunal accepts, that section 104-30(2) requires the Tribunal to make its decision in relation to the matters in section 104-30(1) in accordance with the Guidelines: Kanesbi and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 277.

Applicant's contentions

13.     The applicant's position was succinctly summarised in a letter to the respondent dated 28 August 2009.  The letter stated in part:

I enrolled over the phone [in 2008] to study a course, advised the student adviser that I would like to study something with human behaviour and business, so the adviser suggested [a] Business Degree [majoring] in Human Resources.  The student advisor booked me in and sent me information via the email but [I] only received confirmation [of] the unit 'Accounting & Fundamentals', so I thought that was the only unit I was enrolled in.  The student [advisor] also processed the Fee Help [application].

It was only when I was following up my results towards the end of the year 2008 I found out I was charged and enrolled with the other units.  I sent various emails to the student help line about not knowing about the units I was enrolled in, [but I received no] response, and then found out that the email address was not working [in] about Jan 2009 when I called.  My son had undergone [assistance] in Speech Pathology about August [2008] so I [converted to] part time from full time [work] to assist in my son's development.  I was too involved in wanting to complete the Unit 'Accounting Fundamentals' asap, thinking that was the only Unit I was enrolled in.  I wrote to the OUA to Re credit the Fee Help in the Units I did not know I was enrolled in, as I did not receive any materials from the Universities [or] receive correspondence about [those] Units.

Respondent's contentions

14.     The respondent contended that for the applicant to be successful in having her FEE-HELP assistance re-credited, she must show that a situation arose which did not make its full impact until after the census date, which was out of her control and which made it impracticable to complete the requirements of the units in Study Periods 3 and 4.  The respondent further contended that the situation must be such that a reasonable person would consider it was due to the action or inaction, either direct or indirect, of the applicant; and that the situation must be unusual, uncommon or abnormal.  The respondent contended that such special circumstances as contemplated in sections 104-25 and 104-30 of the Act did not apply to the applicant. 

15.     Specifically, the respondent contended that there was no evidence the applicant did not know of her enrolment in units MAR 11, MAN 11 and BLW 16. 

16.     There was evidence that the respondent had posted a confirmation letter on 31 July 2008, confirming enrolment in the three units, supported by an enrolment acknowledgment email sent automatically from SEEK Learning to confirm the enrolment.

17.     There was further evidence of a telephone discussion, initiated by the applicant, with the respondent’s study advisor on 1 September 2008, to enquire about study materials. 

18.     The respondent further indicated that information was sent to the applicant in respect of units MAR 11 and MAN 11, provided by Monash University during Study Periods 3 and 4.  There was also evidence of information having been sent to the applicant in relation to BLW 16, provided by UniSA in Study Period 4.

19.     According to the respondent, the confirmation letter originally sent to the applicant on 31 July 2008 contained details on how to withdraw from a unit.  The applicant contacted the respondent study advisor with specific enquiries regarding withdrawing from units on 12, 15 and 17 December but she did not lodge a formal online enquiry to withdraw. 

20.     On the basis of the above facts, the respondent contended that it would be unreasonable for the applicant to claim that she did not know she was enrolled in units MAR 11, MAN 11 and BLW 16.  Any lack of knowledge was not beyond her control. 

21.     In relation to the applicant's claim that she needed to provide special care for her son, the respondent contended that the developmental problems faced by the applicant's son dated from June 2008 at least, prior to her enrolment in the units.  This was therefore a factor which the applicant should have taken into consideration when she chose to enrol in the university.  Furthermore, the applicant had not provided any documentation or other independent evidence in support of this respect of the claim.  In addition, the respondent contended that there was no evidence that the amount of support that the applicant was required to provide to her son was any greater than that which parents may ordinarily provide their children. Therefore, it did not meet the requirement of being unusual, uncommon or abnormal circumstances.

Evidence

22.     The applicant told the Tribunal that she had only elected to enrol in one unit, Accounting Fundamentals (ACF 110).  She had successfully completed this subject.  She had not received any correspondence from the respondent indicating that she was enrolled in more than one subject.  This contention was, however, contradicted by the respondent's evidence.

23.     The respondent produced a witness statement from Allan Tabor, Director of the Student and Academic Services unit at UniSA.  Mr Tabor is responsible for student and academic processes for UniSA, including admissions.  Attached to the statement was a template welcome letter sent to students on 25 November 2008.  The applicant told the Tribunal she did not receive any such letter. 

24.     The respondent also produced a witness statement from Barbara Murphy, Team Leader, Campus Central Whyalla Student and Academic Services, UniSA.  Ms Murphy is responsible for student administrative functions, including administration for Open Universities Australia students enrolled with UniSA.  The statement explained the process whereby hard copy unit materials were distributed to students.  Records generated by the University's Mercury Computer System indicated that an Information Booklet for unit BLW 16 was posted to the applicant on 19 November 2008.  This was a substantial document, 43 pages in length.  The applicant claimed not to have received that booklet. 

25.     The respondent produced a witness statement from Alison Whitley, Director, Off-Campus Learning Centre at Monash University.  Ms Whitley's duties include managing the production and delivery of student materials to off-campus Open University students.  Ms Whitley provided evidence, supported by the university's records, that a printed copy OUA Information Guide 2008 was posted to the applicant on 21 August 2008.  Ms Whitley further confirmed that according to University records, a Unit Outline for unit MAR 11 was posted to the applicant on 20 August 2008 and a Unit Outline for MAN 11 was posted to the applicant on 20 November 2008.  The applicant confirmed that the postal address shown in the University's records was accurate but denied receiving any of this material.

26.     In paragraph 22 of her witness statement, Ms Whitley also referred to Information Alerts which would have been emailed to the applicant for unit MAN 11 on 21 November 2008.  The applicant pointed out to the Tribunal that the email address referred to in paragraph 22 was incorrect.  Ms Whitley was subsequently called to give evidence on this point and was able to confirm that the university's records, as reproduced in Attachment J to her statement,  contained the correct address and that the incorrect address in paragraph 22 of her statement was a typographical error in the statement.  University communications would have been sent to the correct address.  The Tribunal accepts this explanation.  In any event, the applicant denied having received any such email. 

27.     The respondent also relied upon a witness statement from Janet Baker, Manager, Policy and Projects, Open Universities Australia.  As part of her role, Ms Baker has access to the OUA customer relationship management system and enrolment system.  Attachments to the statement contained reproductions of computer screen shots of the applicant's enrolment history, confirming that on 30 July 2008 the applicant telephoned the SEEK Learning Call Centre and enrolled over the telephone in all four units.  According to Ms Baker, the applicant would have been made aware of these enrolment details, in addition to having received direct notification from the universities concerned, if she accessed the My Area section of OUA's web page.  The applicant told the Tribunal that she did not access My Area until January 2009 because she was distracted by her domestic responsibilities to her son. 

28.     Ms Baker's statement included evidence from OUA records that an enrolment confirmation letter had been posted to the applicant on 31 July 2008.  The applicant claimed not to have received the correspondence.  The university records contained no evidence of the mail being returned. 

29.     There was also evidence from Ms Baker that a Commonwealth Assistance Notice had been posted to the applicant on 7 October 2008. Again, the applicant told the Tribunal she had not received this document. 

30.     Ms Baker's statement also included, as attachments, screen shots of OUA's computer records of various telephone conversations the applicant had with OUA's student advisor between 1 September and 17 December 2008.  These calls, according to the notation on the various records, included a discussion on 1 September 2008 about the units in which the applicant was enrolled, a conversation on 26 November 2008 in which the applicant's enrolment status was confirmed, and a series of telephone conversations in December 2008 regarding the withdrawal process to be following in the event that the applicant chose to withdraw from subjects in which she was enrolled.

31.     When subsequently called to give evidence, Ms Baker described the process for recording telephone inquiries – once opened, a record could not be closed without recording that the call had been received, and in all instances the student placing the call was required to verify his or her identity.  The applicant told the Tribunal she could not specifically recall whether she had called the student adviser on these dates, or what she had called about, but the records did not seem right to her because her recollection was that she had not made telephone contact until January 2009. 

32.     In relation to her care responsibilities for her son, the applicant told the Tribunal that her son had first started experiencing learning difficulties when he commenced in kindergarten in January 2008.  His teachers advised her in about June 2008 that he should be given extra homework.  The applicant estimated that she spent about an hour each evening providing specific assistance of this nature. 

Decision

33.     The evidence before the Tribunal overwhelmingly supports the conclusion that the applicant was enrolled in four units, namely, ACF 110 (Accounting Fundamentals, Swinburne), MAR 11 (Marketing Theory and Practice, Monash), MAN 11 (Introduction to Management, Monash), and BLW 16 (Introductory Law, UniSA). 

34.     Specifically, the evidence is overwhelming that the applicant enrolled in all four subjects on 30 July 2008 and subsequently received a range of postal communications from the various institutions involved, confirming directly or indirectly her enrolment status. 

35.     The applicant told the Tribunal that she only discovered her enrolment status, and began making telephone enquiries about dropping units, in January 2009, subsequent to the Study Period 4 census date of 21 December 2008.  However, the university records do not support this assertion. It seems clear that these telephone enquiries were made in December 2008, prior to the census date.

36.     In relation to the applicant's assertion that she needed to provide care for her son, the Tribunal accepts that this would have been an additional burden in the applicant's life and that she had at all times undertaken this responsibility conscientiously.  The circumstances do not, however, fall within the category of unusual, uncommon or abnormal as set out in the Guidelines.  Furthermore, it would appear that the child's problems were known to the applicant prior to her enrolment in the units which are the subject of this application.  There is no evidence that the problems experienced by the applicant's child, or the effort involving in providing care for the child, increased to an appreciable degree following the enrolment date.

37.     For the above reasons, the Tribunal affirms the decision under review.

I certify that the thirty seven [37] preceding paragraphs are a true copy of the reasons for the decision herein of
Dr Gordon Hughes, Member

Signed: (sgd) Dianne Eva

Clerk

Date of Hearing  8 April 2010

Date of Decision  30 April 2010
Self-represented Applicant          Ms S Iosefa

Solicitor for the Respondent        Mr T Lawson, Senior Solicitor