Killen and Secretary, Department of Education and Training

[2018] AATA 774

Killen and Secretary, Department of Education and Training [2018] AATA 774 (8 February 2018)

Division:GENERAL DIVISION

File Number(s):2017/1214      

Re:Sue Killen  

APPLICANT

Secretary, Department of Education and TrainingAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Bill Stefaniak

Date:8 February 2018   

Date of written reasons:         9 April 2018

Place:Sydney

The decision under review is affirmed.

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

Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

HIGHER EDUCATION SUPPORT – refund of student fees – special circumstances – whether the Applicant’s circumstances were beyond her control – medical evidence – Tribunal does not find special circumstances – decision affirmed

LEGISLATION

Higher Education Support Act 20013 (Cth) ss 36-20, 36-21

CASES

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

BHLT v Secretary, Department of Education [2014] AATA 643

SECONDARY MATERIALS

Administration Guidelines 2012, Chapter 3

WRITTEN REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

9 April 2018

BACKGROUND

1. The Applicant is an experienced special education teacher.  She teaches children who have physical and mental disabilities.  It is a very demanding job and she has been doing it for about 22 years.

2. She is doing a Master’s in Education degree part-time through the University of Southern Queensland.  Hopefully she will finish it in June of this year. She has found that doing 2 units a semester is enough because of her busy schedule as a teacher.

3. This particular matter deals with unit 8331 -Career Development in Educational Settings. On or about 3 November 2016, the Applicant applied to the University of Southern Queensland for repayment of $769 paid in relation to her student contribution,  under subsection 36.20(1)(e)(i) of the Higher Education Support Act 2003.  That was in relation to a unit of study within the degree namely, EDU 8331.  This unit had an equivalent full-time student load of .125, and had a census date of 14 August 2015.

4. In this case, unlike some of the cases cited, there is no issue as to the census date. There are accordingly no issues arising there. The Applicant also applied on 3 November 2016, the following year, to study that particular unit.  There is no issue that it is within the 12 month time limit, and so nothing arises there.

5. However, on 30 November 2016 the University declined the application to repay the student contribution.  She requested a review on 23 December 2016 and the previous decision was affirmed by the University on 8 February 2017, who gave a number of reasons for so doing.  The Applicant appealed that decision to the AAT on 5 March 2017.

   ISSUE FOR DETERMINATION

6. The issue which I have to determine is whether subsection 36.21 of the Act applies to the Applicant in respect of the unit, and whether there are special circumstances that apply to the Applicant because if there are, she would be entitled to a refund.

   FACTS

7. The Applicant had a back injury which dates back to 2006 when she fell over at school, hurting her left wrist, breaking her knees and her nose and injuring her back.

8. She is a very diligent teacher.  She has rarely taken time off for any injuries.  She had some further incidents in relation to a back injury in 2010, and then again in 2014 when she was lifting up bales of hay which were quite bulky and heavy, as part of her activities at school.

9. In April 2015 she had a further medical episode and had three weeks off work due to hypertension and blood pressure. As this was a compensable injury, she had to be medically cleared to go back to work which she was as at 17 June 2015.

10. Having gone back to work in June 2015, she then on 20 July 2015 enrolled in units 8331 (the subject unit), and 8323.

11. On 24 July she also enrolled in unit 5335 which was a unit where she had had considerable experience and had done considerable work in the area. Despite losing some points due to a late submission of an assessment she subsequently passed that unit.

12. On 14 August 2015, the Applicant, realising that three units was a little bit too much, pulled out of 8328, which was one of the two units that she had enrolled in on 20 July. She did this on time and without penalty.  This left units 5335 and 8331.

13. The Applicant asked for and received an extension of time to 31 December 2015   to enable her to complete her assignments for Unit 8331. She then failed to complete them   by that due date.

14. On 3 November 2016 she sought a remission for the $769 paid for unit 8331.

15. The Applicant got to the stage of collecting an immense amount of material, in unit 8331…..” enough actually for a PhD...” in her words, but only got to an early draft stage in her assignments. She said there were big gaps in her draft. She then ran out of time and could not submit these assignments for assessment by the due date of 31 December of 2015.

16. The Applicant had medical certificates covering 27 October2015 through to 9 November 2015, and also for 24 December to 28 December 2015. She had further medical certificates that covered dates in 2016.  These certificates all relate to her back condition.

    THE LAW

17. To qualify for a refund a student has to satisfy section 36-21(1) and (2) of the Higher Education Support Act 2003 (Cth) (The Act).  Specifically a person must show that special circumstances apply to their situation.

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

19. The Administration Guidelines 2012 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.

20. The Guidelines go on to say:  The purpose of this chapter is to specify the circumstances in which a higher education provider will be satisfied that special circumstances apply to the person that:

    (a)       are beyond the person’s control; 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 of study during the period in which the person undertook or was to undertake the unit.

    Circumstances beyond the Person’s Control etc

21. 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 that person’s actions or inactions, either direct or indirect and for which the person isn’t responsible.

22. The situation referred to in paragraph 3.5.5 must be unusual, uncommon or abnormal.

23. Paragraph 3.10 refers to circumstances that did not make their full impact until on or after the census date:

24. 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.”

25. Paragraph 3.15 states:

    Circumstances that make it impractical for the person to complete the requirements.

26. Paragraph 3.15.1 states:

    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;”

27. The medical circumstances state:

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

28. The Act then talks about family, employment and , course-related circumstances .   None of those apply.  It goes on to say:

    A person is unable to complete the requirements of a unit if a person is unable to undertake the necessary private study required or attend sufficient lectures or tutorials to meet other compulsory attendance requirements, or in order to meet their compulsory course requirements, or complete the requisite assessable work, or sit the required examinations or complete any other course requirements because of their inability to meet (a), (b) and (c) above.

29. Satisfying one descriptor is enough. In this case I would imagine the relevant descriptor is; “to complete the required assessable work.”

30. The tribunal also has to consider was it beyond the person’s control that the matter did not make its full impact on the person until after the census date, and made it impracticable for the person to complete the requirements of study.

    THE APPLICANT’S EVIDENCE  

31. The Applicant told the tribunal that in the past she had studied a fair bit.  She had done a diploma in about 2006/ 2007.  Her back had been on occasions painful because of the sitting but it had never flared up like it did in mid-September 2015.

32. I found the Applicant to be a woman of truth who gave her evidence as forthrightly as she could.  She was vague on a number of points.  She could not remember certain things, but I accept that she was doing the best to her recollection, and being as accurate as she could be. 

33. There were certain things she could not remember, and she had no qualms saying that that was the case. She gave her evidence in an open and forthright manner, albeit not being exact on a number of things because she simply couldn’t remember.  She indicated that she had issues with her back in the past.  She was dedicated to her job and did not take time off work if she could possibly avoid it.

34. She had been able to do various courses and she would invariably do two units a semester up until this period. For whatever reason, and it is unclear why, her back suddenly became difficult in September 2015.

35. In early September 2015 when her back started to get problematic, she applied to her lecturer for an extension of time to do the 40 per cent assignment and the 60 per cent assignment. 

36. He gave that extension until the end of the year without requiring a medical certificate It appears that the course she was doing did not have an end date, but the parties accepted that the end date effectively was the end of the year as her lecturer would not extend the extension past 31 December 2015. 

37. I accept 31 December 2015 was not only the time the time she had to complete the assignments, but also the end date for that particular course.

38. The Applicant as indicated obtained a number of medical certificates. There were several certificates from several doctors from 27 October through to 9 November 2015.  The certificates in evidence before the tribunal for this period provided the same information; for example, Dr Campbell for the period 7 November to 9 November stated that he had examined her and “in my opinion she is suffering from a medical condition and would be unfit for her to study.”

39. Similarly, Dr Ansay, on 24 December to 28 December 2015, examined her and said that in his opinion “she is suffering from a medical condition and will be unfit for university studies.”

40. There was also a certificate in February 2016 which indicated that she had this back condition in October 2015 that affected her. 

41. The applicant told the tribunal that she did not at the time see the need to get certificates that would completely cover the period from 27 October through to the end of December 2015

42. In relation to these matters, I have to be satisfied that (a), (b) and (c) of section 36-20(1) are satisfied.  It is not a case of one thing is all that needs to be satisfied.  I have to be satisfied on the balance of probabilities that she has made out her case in relation to all the criteria.   

43. Back in June 2015 she was basically jumping out of her skin to actually get back to teaching, having had three weeks off and at T166-167 Dr John Watson, whilst stating the Applicant was still in some pain gave her the all clear to go back to work but limited her walking to 30 minutes per day and standing to less than 60 minutes at a time. She was also to take Nurofen and Panadol.

44. Accordingly as at that time I am satisfied that she could go back to work with the above qualifications, which is what occurred.

45. Then it seems in September the pain and difficulties with her back started.  She had difficulty sleeping.  She had difficulty standing.  She certainly had difficulty sitting.  She was able, if she moved around, (and she moved around at school) to continue with her duties. I note that moving around seemed to help her.

46. She told the tribunal that after about three weeks of pain, she started taking a couple of Nurofen and a couple of Panadol together, then weaning herself down to one Nurofen and one Panadol. This seemed to have a very significant effect in terms of reducing pain.

47. I can accept that it was certainly difficult for her to sit for particularly lengthy periods of time- certainly up until February 2016. There are medical certificates in early February 2016 which indicate that there are still some problems.-not continuous medical certificates but certificates that indicate a consistent history of medical problems from October 2015 through to February 2016.

48. In her evidence, she indicated that she was able to complete the first assignment in the 5335 course on time and was a little bit late for the second one.  The second one was marked on 20 November 2015 and it would seem that some time before 20 November 2015 she must have submitted it.

49. So, she was therefore certainly able from about mid-November 2016 until to 31 December 2015 (due to her extension) to fully concentrate on unit 8331.

50. The Applicant expressed some concerns to the tribunal about whether she was able to do the work but still felt confident, even when she asked her lecturer could she have some more time past the 31 December 2015 deadline and he said no, that she would still be able to do it on time.

51. Indeed, she further told the tribunal that even when school was breaking up for the summer holidays in  about mid December 2015  she still felt  she may well be able to meet the 31 December deadline.

    APPLYING THE FACTS TO THE LAW

52. I now need to apply these facts to the law.

53. I need to consider whether (a), these circumstances were beyond the Applicant’s control.

54. In doing so it has to be a situation where a reasonable person would consider that these circumstances were not due to the Applicant’s action or inaction, either direct or indirect.  There is nothing to make me believe that the situation is anything other than circumstances beyond her control.

55. She was certified to go back to work on 17 June of that year.  From mid-September onwards, she has these back pains.  She does take steps to control it as best she can.  She is taking medication as requested.  She is doing what she can to manage it.  She has seen doctors on occasions during the this time.

56. I am satisfied that those are circumstances beyond her control and so the Applicant satisfies the provisions outlined in subsection 36-20(1)(a).

57. I now need to consider (b), that is, circumstances that did not make their full impact on her until after the census date. Under subsection 36-20(1)(b) a higher education provider has to be satisfied that:

    The person’s circumstances did not make their full impact on the person until on or after the census date for a unit if that person’s circumstances occurred before the census date but worsen after that day. 

58. The Applicant has had back issues before.  She aggravated her back in April 2015.  She was cleared to go back to work in mid-June.2015 The back condition is there.  It is a degenerative back condition too according to the medical reports.  So it is there as a condition before the census date and it had clearly worsened.  It worsened from September 2015 onwards and remained in that condition until at least February 2016. 

59. I am satisfied that subsection 36-20(1)(b) is made out. The circumstances occurred before the census date and worsened for whatever reason after that day.

60. We come to the third consideration (c):

    Circumstances that make it impracticable for the person to complete the requirements. 

61. A higher education provider has to 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 in which the person undertook or was to undertake the unit, if circumstances such as the following occur:  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.

62. There are a number of factors that I need to consider.

63. The case of Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 provides some assistance to this tribunal. In that case DP Forgie  held at paragraph 46[sic]:

    As unfortunate as it is that Mr Zabaneh does not enjoy good health and that his parents have died, we are not satisfied that his circumstances were such that it was impracticable for him to complete the requirements of each unit within the relevant semester as required by section 104-30(c).  “Impracticable” means “… not able to be done”.  On the evidence, it might have been difficult for him to do so but the circumstances on which Mr Zabaneh relies were not such that completion of the requirements of the four units of study was not able to be done.

64. The case is authority for the proposition that “impracticable” means “not able to be done”. The Oxford dictionary defines impracticable as “impossible to carry out” which is effectively the same as “ not able to be done “

65. There is another case which does look at this very briefly, although it seems to have ruled out the Applicant getting their money back, or their HECS on ground number 1.  That is the case of BHLT v Secretary, Department of Education [2014] AATA 643.  In that case, the Applicant had a long history of back pain and on 15 January 2013 that Applicant was involved in a motor vehicle accident which caused her neck, shoulder and back pain. 

66. She had been provided with a number of medical certificates.  One certificate certified she was unfit for University from 18 March ’13 to 20 February 2013, inclusive.  Another certificate in May certified her whiplash injury had not resolved even though she had physiotherapy.  A medical practitioner gave evidence and thought that her situation may have worsened after the census date.  There were also issues of financial loss, and she had also been a victim of domestic violence 20 years earlier but had sought counselling in more recent times for that.

67. The tribunal had previously considered whether the circumstances made it impracticable for that   applicant to complete the requirements for the relevant units of study during the period during which that applicant undertook the relevant units of study.  It states (at para 19):

    “This is a requirement of section 36-21(1)(c) of the Act which must be satisfied for the Applicant to succeed in this application. On my assessment of the evidence, the Applicant does not satisfy section 36-21(1)(c) of the Act.  This is again because the Applicant was able to attain a satisfactory pass for a course in Term One.”

68. There is a similarity between this case and BHLT’s in that in both cases the students passed in one subject but not in another. In the present case the circumstances I must look at, are whether the medical condition has changed to such an extent that the Applicant is unable to continue studying and that circumstances make it impracticable for the Applicant to complete the requirements of the unit of study in her course.

69. I have to be satisfied that this is the case on the balance of probabilities.

70. I am certainly satisfied the Applicant had this medical problem. I am certainly satisfied that she was in pain from sometime in September 2015 through to February 2016.

1. However, on her own evidence, she has indicated that she did not feel that she should just simply give up that unit or just say, “Look, I just simply cannot do it,” earlier than 31 December 2105”.  She still felt as late as mid-way through December 2015 that she might still be able to complete the unit by the 31 December 2015 deadline.

2. So her intentions, probably right up until around about Christmas 2015, seemed to have been to battle on and see if she possibly could do it.  She had successfully completed what was a much easier unit, something she was very familiar with by November 2015, so she felt she did have some time left to her to complete unit 8331. 

3. These circumstances made it difficult for her to complete the requirements.  I think the fact that she still thought she might be able to do it, and did as much as she could - indeed she got to the stage where she collated all her material and had started doing a draft, albeit not a complete draft - does indicate that  it was not necessarily impracticable for her to complete the requirements. 

4. I think it might have been different if there had been medical certificates covering the whole period from September 2015 to February 2016 but I fully understand why she did not seek to obtain such certificates.

5. It seems from her own evidence that certainly after she finished her last assignment for the unit that she did complete, in early November 2015, she felt that she may well still be able to complete unit 8331. She was having a go in doing her best to complete it. She felt as late as around mid- December 2015 that she might still complete it.

6. These circumstances taken together, on the balance of probabilities, prevent the Applicant from satisfying that last requirement. 

7. The fact that she still, virtually right up until the end of the course felt that she might complete it in time mean that she falls short of proving, on the balance of probabilities that her circumstances and her bad back made it impracticable for her to complete the requirements of study during the period which she undertook or was to undertake the unit and that is up until 31 December 2015.

8. Unfortunately, that means that she fails in getting her $769 back.

9. As I indicated at the hearing, at least the Applicant can console herself to an extent because she told the tribunal that she still got a lot of benefit out of doing the unit and the work she did in it and the effort she put in, was obviously going to hold her in good stead for the future.

10. This is especially relevant as it appears she now no longer needs to do that unit for her Master’s degree. As it turns out it was not money wasted.

11. As a result of my above findings, the order of this tribunal is that the decision appealed from will be affirmed.

. 

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Mr Bill Stefaniak, Senior Member

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

Associate

Dated: 9 April 2018

Date(s) of hearing	29 January 2018
Applicant:	In person
Solicitors for the Respondent	Mr Rob Mason, Principal Government Lawyer