KDRH and Secretary, Department of Education

[2019] AATA 1114

KDRH and Secretary, Department of Education [2019] AATA 1114 (3 June 2019)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )

)          No: 2018/1886

General Division                 )

Re: KDRH

Applicant

And: Secretary, Department of Education and Training

Respondent

DIRECTION

TRIBUNAL:

DATE OF CORRIGENDUM:

PLACE:

Chris Puplick AM, Senior Member

12 June 2019

Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), that the text of the decision in this application is to be altered such that:

1.           The references to “withdrawing from the course”, “withdraw”, “withdraw application”, “withdrawal” and “withdraw from the course” in heading 5, paragraphs 40, 43, 52(f) and 52(g) are replaced with “apply for re-crediting”.

2.           The altered paragraphs in the decision will read as follows:

a.  5. Was the Applicant in any way prevented from or incapable of applying for re-crediting within the specified 12 month period? The answer is NO.

b.  [40] The Applicant has advanced several reasons why she claims to have been unable to take steps to apply for re-crediting within the required time period. None of them, on examination appear to offer a reasonable justification.

c.  [43] This means that unless there is a valid reason why the Applicant has not been able to apply for re-crediting within the 12 month period, the consideration of whether or not there are any special circumstances which should be taken into account, does not need to be undertaken. A necessary threshold has not been passed.

d.  [52(f)] The Applicant lodged an application for re-crediting online which was outside the time prescribed by legislation;

e.  [52(g)] No compelling reason has been established why the Applicant was unable to take action to apply for re-crediting within the statutory time limit;

…………………[sgd]…………………….

Chris Puplick AM, Senior Member

NOTES TO DIRECTION

1.        If you do not comply with a direction, the Tribunal will list the application for a directions hearing. You will be required to attend the directions hearing in person and explain why you have not complied with the direction.

2. The Tribunal can dismiss an application if an Applicant fails within a reasonable time to comply with a direction made by the Tribunal. This power is set out in section 42A(5)(b) of the Administrative Appeals Tribunal Act 1975. If you are the Applicant and you fail to comply with a direction, you may also be asked to explain at the directions hearing why your application should not be dismissed.

3.        If a party fails to comply with this direction, the Tribunal will not necessarily decide to adjourn, or delay the listing of, an alternative dispute resolution process or hearing.

4.        Where the Tribunal has the power to award or recommend the payment of costs, failure by a party to comply with this direction may be taken into account in making a decision relating to costs.

5.        If you do not believe you will be able to comply with a timeframe or any other aspect of this direction, you must apply to the Tribunal for an extension of time to comply or a variation of the direction. You must seek the views of the other party before making such an application, and advise the Tribunal of the other party’s views. You should make the application well before the date by which you are required to comply with the direction.

6.        If you have been directed to give the Tribunal a Hearing Certificate, in accordance with the General Practice Direction, the Tribunal may list your application for hearing without further consultation if you do not provide the Hearing Certificate by the specified date.

Division:  GENERAL DIVISION

File Number(s):  2018/1886

Re:         KDRH

APPLICANT

And        Secretary, Department of Education

RESPONDENT

Decision

Tribunal:  Chris Puplick AM, Senior Member

Date:      3 June 2019

Place:     Sydney

The decision under review is affirmed.

.................................[sgd]....................................

Chris Puplick AM, Senior Member

Catchwords

HIGHER EDUCATION SUPPORT – FEE-HELP debt – application for re-crediting – out of time – whether special circumstances apply – domestic violence – pregnancy – whether domestic circumstances prevented application for re-crediting in twelve months – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) s 42A

Higher Education Support Act 2003 (Cth) ss 43, 46, 49, 55

VET Student Loans Act 2016 (Cth)

Cases

Brown and Secretary, Department of Education and Training [2015] AATA 518

Magliano and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 43

Olsen and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education [2012] AATA 824

Secondary Materials

VET Administrative Information for Providers Guide

REASONS FOR DECISION

Chris Puplick AM, Senior Member

3 June 2019

1. This appeal arises from the application by the Applicant to have a debt incurred by her to the Commonwealth set aside.

2. The debt arises under the Higher Education Support Act 2003 (Cth) (the Act) and relates to the scheme of assistance to students known as VET FEE-HELP.

3. As the debt in question is to the Commonwealth, the Respondent in this case is the Secretary, Department of Education and Training, being the responsible authority for the operation of the FEE-HELP scheme.

Caveat

1. As indicated below, the hearing before the Tribunal took place in May 2019 at which time the Applicant appeared by telephone. The Respondent’s representative was present in person.

2. The Tribunal invited the Applicant to give an outline of the basis of her application and to tell the Tribunal about any matters which she wished it to consider. She did so. She also replied to a number of initial questions put to her directly by the Tribunal related to her enrolment and her participation in any form of course-based study. It was also established that she had received the Tribunal’s “T-documents” although she indicated that she had not felt capable of reading and commenting on them thoroughly. The Applicant also stated that she accepted that she had failed to lodge her application for re-crediting of the debt within the required time period.

3. However, when the Respondent commenced putting a number of questions to her, after initially replying, she took objection to being asked about matters which she believed irrelevant or which she said she had covered previously. She stated that there “was a black hole in my memory of that period” and that she did not believe that the Tribunal could comprehend or sympathise with “the severity of what I was going through”.

4. The Applicant then declined to answer any further questions from the Respondent and, despite being offered a chance to take a break or to make any further submissions to the Tribunal, in her own words and at her own pace related to her reasons for lodging her re-crediting application out of time or the existence of special circumstances, she announced that she did not wish to continue with any further participation in the Tribunal proceedings and simply hung up the telephone call after telling the Tribunal to “make whatever decision you like”.

5. In the absence of the Applicant the Tribunal proceeded to seek from the Respondent a final statement of their position and the clarification of certain matters for the assistance of the Tribunal.

6. Although there are provisions under section 42A of the Administrative Appeals Tribunal Act 1975 (Cth) to terminate or discontinue proceedings where a party withdraws or refuses to participate in its operations, the Tribunal does not think that the particular circumstances of this case warrant such a course of action.

7. It has proceeded to determine this matter on the material before it and the limited oral evidence of the Applicant in the early stages of the hearing.

What is FEE-HELP?

1. FEE-HELP is a student assistance (loan) scheme for students undertaking courses in the vocational education and training (VET) sector. Where an enrolled student meets the requirements of the Act the Commonwealth pays the amount notionally loaned to the student, direct to the VET provider in order to discharge the student’s liability to pay their own tuition fees.

2. The VET FEE-HELP scheme came into existence when the Act was passed in 2003 and was in place until superseded by the VET Student Loans scheme which commenced on 1 January 2017. However at the relevant times for this application, it was the scheme in place during 2014 and 2015.

3. Section 43 of Schedule 1A of the Act sets out the general rules for entitlement to FEE-HELP and, when qualified, a student is loaned the amount required to cover the fee for the specific course which is then paid, not to the student direct, but to the course provider (section 55).

4. In due course the loan in question must be repaid by the student after a specified period of time and once their income has exceeded a specified (and regularly adjusted) amount.

5. There may be circumstances in which a student is eligible for the re-crediting of their fees where they have enrolled, FEE-HELP has been paid to their education provider and they have not completed the requirements of the course (section 46). Such re-crediting requires that the student make a formal application for the re-crediting and that they meet certain criteria, as discussed below. Such applications for re-crediting must be made within a specific time as prescribed (section 49).

What are the relevant dates in this application?

Academic

1. In January 2014 the Applicant applied to enrol in a diploma being provided by the College. There appears some confusion over precise dates since a letter from the College to the Applicant states that she enrolled in early February 2014.

2. For the purposes of this course, the so-called “census date” (see below) was Friday 7 March 2014.

3. In late February 2014 the Applicant was in contact with the College making enquiries about whether or not some of her prior studies could be counted by way of recognition of prior learning (RPL) towards progress in her course. Details of these prior learning qualifications are set out in a letter addressed “To Whom it May Concern” written by the Applicant dated in January 2014, the day after she signed her enrolment form.

4. In April 2014 the Applicant sought advice from [College] about how to withdraw from her course and at the end of April 2014 she submitted a formal withdrawal using the College’s online application.

Personal

1. At the time of her enrolment the Applicant was married and had one child. She was working as a [job] with the [employer] on the central coast of NSW.

2. Within a few weeks of her enrolment she discovered that she was pregnant with a second child and this precipitated the breakdown of her marriage, with her husband abandoning her and her children.

3. The Applicant suffered a difficult pregnancy and took early maternity leave from her employment in July 2014. Her second child was born in September 2014. She did not return to work but received Centrelink support payments and, in some degree of financial hardship, and with the support of her mother, she moved back to her home town in rural NSW.

4. Eventually, in December 2015 in proceedings in the Family Court, consent orders were granted between the parties giving the Applicant “sole parental responsibility” for the two children.

Appeals

1. The Applicant states that upon lodging her 2016 personal income tax return she learned, through her Tax Agent, that she was encumbered by a FEE-HELP debt of $1,674.00.

2. In July 2017 the Applicant applied to the College for remission of the FEE-HELP debt, claiming that there were “special circumstances” why this should be granted. However, this application was refused by the College in July 2017, and this was notified to the Applicant the following day.

3. On that same day the Applicant requested a review of that decision but the College reaffirmed their refusal decision in August 2017.

4. In April 2018 the Applicant lodged an appeal with this Tribunal for a review of that decision and her application was heard on 20 May 2019.

The Applicant’s case

1. The Applicant makes the following claim in her application to the Tribunal:

   “As per all evidence provided, I received no confirmation of enrolment, had previously explained I was unsure due to just finding out I was pregnant – escaping a bad marriage – all medical evidence was provided. As I had to leave job early due to high risk pregnancy I had no access to work email for correspondence.”

2. In her application to the College for special circumstances considerations, she wrote:

   “I inquired about studying back in 2014, but shortly after found out I was pregnant with my second child & my marriage had just broken down. I spoke to someone at [the College] & informed them that due to the circumstances I would not be enrolling in the course, they informed me that all was ok. I haven’t received any further paperwork to say I am enrolled or any course components, and as was previously stated I was informed that all was ok when I was unable to enrol. I now have a HELP debt of $1700 and should not have to pay for something I was told I wasn’t enrolled in. I have been liaising with the ombudsman (sic) and will pursue further if necessary. I am a sole parent, working to support us all and can not afford to pay for something I shouldn’t have to.”

3. In support of her assertions, the Applicant has provided a copy of a statement, not in the form of a Statutory Declaration, from her mother which states, in part:

   “As [the applicant] and her daughter were residing with me for all of 2014, I can honestly attest to the fact that NO STUDIES or modules towards studies of any type were commenced while [the applicant] was living with me. I do recall [the applicant] stating that she was unable to even consider attempting any studies or modules and that she intended to cancel the registration for the courses/modules due to the all-round issues prevailing at the time. To the best of my knowledge also, no written communication was ever received by mail at my home for [the applicant] concerning any studies or student loans of any type.”

4. The Applicant has also provided extensive evidence as to her medical condition, especially in relation to her pregnancy together with relevant Family Court documents in relation to Orders regarding parenting of her two children.

The Respondent’s case

1. In short the Respondent states:

   (a)       The Applicant was duly enrolled in a course of study for which FEE-HELP was paid on her behalf to the training provider to cover her course fees;

   (b)       Hence there is a repayable debt accrued to recover those fees;

   (c)       Although the Applicant withdrew from the course, she did so outside the time which is specified in the legislation, that is, after the census date, and

   (d)       She does not meet the “special circumstances” requirements of the legislation which would permit the FEE-HELP debt to be re-credited.

2. Each of the issues raised by the respective parties must be examined.

The relevant questions

1. Was the Applicant enrolled as a student in the course for which FEE-HELP was paid? The answer is clearly YES.

1. The applicant completed an “Application for Admission” document in January 2014. In that form she also acknowledged that the fees for the course would be paid by FEE-HELP and that she had completed a FEE-HELP Assistance form.

2. Was the Applicant aware of the dates for the commencement and conclusion of the first term of her course and with the census date, being the date by which she was able to withdraw from the course without being subject to any form of penalty of fee repayment? The answer is NOT CLEAR.

1. The Applicant says that she received no information about such matters, or that she received any materials related to the course. She further told the Tribunal that she did not receive a student identification number or any advice about FEE-HELP matters. However on a form which the Applicant completed in January 2014 she clearly states her student ID number, together with giving details of her Tax File number and her personal email address. The Tribunal Documents contain a document which sets out clearly the relevant term dates and the census date for the relevant course. In the normal course of events such a documents would have been supplied to the Applicant or would at least have been available to her online.

3. Was the Applicant aware of FEE-HELP provisions, including the possibility of debts arising which might need to be repaid? The Tribunal believes that the answer to this is YES.

1. The Applicant has completed previous courses of study, and indeed sought RPL of these when enrolling. In answer to questions from the respondent she stated that she could not remember exactly who paid the fees for these courses but was aware that she had not. The Applicant also made a formal application for FEE-HELP and it is to be presumed that she did so with some knowledge of the scheme and its operations. Furthermore records of contacts and conversation between the Applicant and [College] indicate that she was on notice about possible issues of needing to establish special circumstances in order to avoid the prospect of facing repayments.

4. Did the Applicant fail to apply for re-crediting of FEE-HELP payments within the time prescribed within section 49 of the Act? The answer is YES.

1. Section 49 establishes a time limit of twelve months in which such applications must be received.

   49  Application period

   (1) If:

   (a) the person applying under paragraph 46(2)(d) for the re-crediting of the person's FEE-HELP balance in relation to a VET unit of study has withdrawn his or her enrolment in the unit; and

   (b) the VET provider gives notice to the person that the withdrawal has taken effect;

   the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.

   (2) If subclause (1) does not apply, the application period for the application is the period of 12 months after the period during which the person undertook, or was to undertake, the unit.

2. The Applicant agreed that she had failed to act in the time limits but said that this was on the basis of her being “incapable” of doing so and because of the existence of special circumstances.

3. The census date was 7 March 2014, after which time the Applicant was required to pay (via FEE-HELP) fees for the course, not having withdrawn before. Thereafter she did withdraw (in April 2014) and there was then a period of time during which she was required to lodge her application for re-creditation. That was a period of 12 months which expired in April 2015. The Applicant does not contest that her withdrawal application was out of time when it was lodged in July 2017.

5. Was the Applicant in any way prevented from or incapable of withdrawing from the course within the specified 12 month period? The answer is NO.

1. The Applicant has advanced several reasons why she claims to have been unable to take steps to withdraw within the required time period. None of them, on examination appear to offer a reasonable justification.

            The Applicant refers to her medical condition arising from her second pregnancy and the difficulties she encountered with this pregnancy. However there are two problems with this claim. In the first instance none of the extensive medical evidence presented to the Tribunal by the Applicant supports her position. The earliest medical evidence submitted is dated on or about mid May 2014 which is the same date as the final day of Term 1. There are no medical records which cover the period of her first term enrolment or anything to show that during this period she had medical problems which compromised her ability to undertake normal activities.

            At the relevant time the Applicant was also in work as an [employee] for the [employer]. This work was on the basis of regular 4 days per week (0700 to 1530 hours) and involved a variety of tasks which required attention to detail and competent management. She remained in employment until July 2014.

            The Applicant refers to issues of her marriage break up and claims that this involved issues of domestic violence and abuse. It is hard for the Tribunal to be assured about these matters on the basis that, in the documents which the Applicant signed for Family Court proceedings she specifically attested that: “I certify that I do, or the party I represent does, not consider that I, the party I represent or any other party to the proceedings has been or is at risk of being subjected to family violence.”

1. The authorities on this question make it clear that failure to meet the time requirements can be considered only if the circumstances giving rise to the failure, constitute a “very serious constraint”; an inability “to attend to day-to-day activities”; or an inability “to take rational action or that it debilitated her to the point that she could not process the information available to her about her enrolment”. None of those circumstances are established in this application.

2. Section 46 of the Act provides that re-crediting of FEE-HELP is possible where:

   46 Main case of re-crediting a person's FEE-HELP balance

   ………………

   (2) A VET provider must, on the Secretary's behalf, re-credit a person's FEE-HELP balance with an amount equal to the amounts of VET FEE-HELP assistance that the person received for a VET unit of study if:

   (a) the person has been enrolled in the unit with the provider; and

   (b) the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit; and

   (c) the provider is satisfied that special circumstances apply to the person (see clause 48); and

   (d) the person applies in writing to the provider for re-crediting of the FEE-HELP balance; and

   (e) either:

   (i) the application is made before the end of the application period under clause 49; 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.

3. This means that unless there is a valid reason why the Applicant has not been able to make a withdraw application within the 12 month period, the consideration of whether or not there are any special circumstances which should be taken into account, does not need to be undertaken. A necessary threshold has not been passed.

4. However, in the event that the Tribunal is in error on that point, it will consider whether special circumstances exist.

6. Do special circumstances exist which might justify a decision to re-credit the FEE-HELP debt/payments? The answer is NO.

1. Special circumstances are defined in the Act:

   48  Special circumstances

   For the purposes of paragraph 46(2)(c), special circumstances apply to the person if and only if the VET 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 VET 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. There is some guidance on this matter set out in Chapter 10 of the VET Administrative Information for Providers guide:

   Circumstances could be considered beyond a person’s control if a situation occurs that 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. This situation would generally be expected to be unusual, uncommon or abnormal.

   For example, a lack of knowledge of how VET FEE-HELP works or the requirements regarding census dates would not be considered beyond a person’s control.

   The term impracticable is defined as ‘not practicable, that which cannot be put into practice with the available means’. ………

   Circumstances that make it impracticable for the person to complete the requirements for their VET unit of study may include:

   - 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;

   - 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…

3. It will be apparent from the discussion above that the Tribunal has been presented with no evidence to establish that circumstances in this instance were beyond the control of the Applicant. At the relevant time she was managing her life on a day-to-day-basis and was in regular employment. There is no evidence which supports the proposition that it was “impractical” for the Applicant to complete the unit requirements, although they clearly were not completed. While the circumstances of the difficult pregnancy may not have had their full impact until after the census date, which the Tribunal is willing to accept, the requirements in section 48 are cumulative and all of them must be satisfied. They are not.

4. Even if special circumstances were made out, they alone could not justify the re-crediting of the FEE-HELP debt where there is no good reason for the application being made out of time.

7. Was the Applicant unaware of the debt which had arisen and the requirement to make repayments? The Tribunal believes that the answer is NO.

1. The Applicant has maintained throughout that she received no information from the College following her enrolment which would allow her to undertake either studies or become aware of her FEE-HELP position. In part she bases this on a claim that, after she left work at [employer] she was unable to receive any emailed information and that the [employer] email address was her operational email address. The Tribunal does not accept this submission:

            On all forms which the Applicant completed she provided a personal email address which was her personal address and had nothing to do with the [employer];

            There is no indication in any of the material as to what that [employer] email address might have been;

            The Applicant was employed by the [employer] in the period following her enrolment in January 2014 until her departure in July 2014 which was after the conclusion of the first term of her course;

            Other material was clearly mailed to an address which she had provided on her application forms.

2. The Respondent addresses this question as follows:

   8.6 Further, even if the Applicant was not aware that she had incurred a VET FEE-HELP debt (as claimed in her recent letter of 11 September 2018), this does not provide a basis for decision that it was ‘not possible’ for her to make the Application within the prescribed time period. In this respect, the Respondent submits that:

   8.6.1 it was within the Applicant’s capacity to make enquiries about the potential existence of the debt (particularly in circumstances where she ought to have been put on notice by the reference to making a special circumstances application);

   8.6.2 the Tribunal has consistently found that ignorance of the VET FEE-HELP scheme does not provide an applicant with an excuse for failing to submit applications within the prescribed time period; and

   8.6.3 if ignorance were an excuse, this would substantially undermine the efficient administration of the VET FEE-HELP scheme, to the extent that students could avoid the consequences of non-compliance by pleading ignorance, and would have no incentive to inform themselves about their obligations.

3. Lack of knowledge is not, of itself, a sufficient reason for non-compliance with requirements given the Applicants ability and opportunity to make enquiries and the fact that she was on notice about such issues in earlier contacts with the College.

Discussion

1. The evidence before the Tribunal establishes that:

   (a)       The Applicant took positive steps to enrol in a course of study and to apply for FEE-HELP assistance;

   (b)       Such enrolment took place and the Applicant was either provided with, or had access to, information about the starting and finishing dates for the first term of study and the census date which attached to that course;

   (c)       The Applicant was in touch with the education provider on a number of occasions and eventually made enquiries about withdrawal from the course which she had neither commenced in any meaningful way, nor obviously completed;

   (d)       These enquiries led to her being provided with relevant information both about withdrawal from courses and matters of special circumstances which might arise;

   (e)       The Applicant has been enrolled in and completed previous courses of study which were funded by sources other than herself and must have been aware of the relevant arrangements attaching thereto;

   (f)        The Applicant lodged a withdrawal from course notice online which was outside the time prescribed by legislation;

   (g)       No compelling reason has been established why the Applicant was unable to take action to withdraw from the course within the statutory time limit;

   (h)       Even if such reasons were to exist, no special circumstances exist which would otherwise justify the re-crediting of the debt in question.

DECISION

1. The decision under review is affirmed.

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

..................................[sgd]......................................

Associate

Dated: 3 June 2019

Date(s) of hearing:

May 2019

Date final submissions received:

10 October 2018

Applicant:

In person

Advocate for the Respondent:

Mr T Galvin

Solicitors for the Respondent:

Maddocks Lawyers