McNally and Secretary, Department of Education and Training
[2018] AATA 341
•29 January 2018
McNally and Secretary, Department of Education and Training [2018] AATA 341 (29 January 2018)
Division:GENERAL DIVISION
File Number(s): 2017/4196
Re:Grant McNally
APPLICANT
Secretary, Department of Education and TrainingAnd
RESPONDENT
DECISION
Tribunal:Senior Member M J McGrowdie
Date:29 January 2018
Date of written reasons: 28 February 2018
Place:Sydney
The decision under review is affirmed.
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Senior Member M J McGrowdie
CATCHWORDS
HIGHER EDUCATION – applicant enrolled in diploma at TAFE – no request for withdrawal on or before census date – repayment of VET FEE-HELP balance required – whether grounds to re-credit the VET FEE-HELP balance – special circumstances – decision affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth), sch 1A cls 46(2), 48
SECONDARY MATERIALS
VET Administrative Information for Providers: September 2015
REASONS FOR DECISION
Senior Member M J McGrowdie
28 February 2018
BACKGROUND
The applicant enrolled in a Diploma of Building and Construction at TAFE NSW – Western Sydney Institute, Open Training and Education Network (the TAFE) on 4 December 2014, to advance his credentials and his career. His enrolment was confirmed on 6 December 2014. Mr McNally successfully applied for VET FEE-HELP assistance for this course and money was subsequently paid directly to the TAFE.
He was, at the time of his enrolment, engaged in employment with a structural steel company and he saw signs which led him to believe that his job was in jeopardy and that he may suffer retrenchment. This is not something which he could easily accommodate, as he was with his partner, they had purchased a house, and they were planning on marrying and having a child. They subsequently did marry and have a child.
Mr McNally then did the best thing that he could, and which was available to him, and took on the job of an estimator with a home construction company. Little did he know at the time that he was going to be pushed into the position of senior estimator rather than junior estimator, and his workload mushroomed such that he was working some 60 hours a week, plus the commute between the Sydney area and the Central Coast of New South Wales where he resided. On the applicant’s submissions, this made it impossible to continue with the course.
The TAFE emailed the applicant several times from 7 March 2015 regarding work received or not received from him and expressing concern over his study progress. On 26 October 2015 the TAFE advised the applicant in an email that the course was due to expire on 31 December 2017 but that he could potentially apply for an extension of the course. The applicant emailed the TAFE several times from 24 October 2015 advising of his situation. The applicant did not request an extension of the course beyond 31 December 2017.
The applicant emailed the TAFE on 10 October 2016 seeking to withdraw from the course.
On 10 December 2016, the applicant applied to the TAFE for a re-credit his VET FEE-HELP debt under subclause 46(2) of Schedule 1A of the Higher Education Support Act 2003 (Cth) (the Act) in relation to the units Building and Construction (Building) 1 and Building and Construction (Building) 2 (the Units). This was after the census date of 20 January 2015.
On 2 March 2017, the TAFE refused the application for a re-credit of the VET FEE-HELP for the units.
On 20 March 2017, the applicant requested a reconsideration of this decision. This was affirmed by the TAFE (the reviewable decision) on the basis that the applicant did not meet all three requirements for special circumstances as set out in the Act. This decision was sent to the applicant in a letter dated 22 June 2017 and included reasons for the decision.
The applicant applied to the Administrative Appeals Tribunal (the Tribunal) on 18 July 2017 to commence a review of this decision.
ISSUES AND LEGISLATION
The legislation allows for a refund of VET FEEs where there are special circumstances. The details of the legislative provisions are clearly set out in the respondent’s statement of facts, issues and contentions and special circumstances are specifically addressed in paragraph 29 and following.
The issue before the Tribunal is whether there are ‘special circumstances’ that applied to the applicant.
Special Circumstances
Under schedule 1A of the Act, the applicant may obtain a re-credit of the VET FEE-HELP balance if he can show that special circumstances existed.
Subclause 46(2) of the Act is as follows:
(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.
Note: A VET FEE-HELP debt relating to a VET unit of study will be remitted if the FEE-HELP balance in relation to the unit is re-credited: see section 137-18.
The phrase ‘special circumstances’ is elaborated in clause 48 of schedule 1A of the Act as follows:
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.
A document titled VET Administrative Information for Providers: September 2015 (AIP) gives instructions to VET providers and sets out what will be regarded as special circumstances, and what will not be regarded as special circumstances.
In short, there are certain elements to special circumstances as set out in the legislation and further explained in the AIP. The elements are essentially that the action or inaction was due to matters for which the person was not responsible, and that they were unusual, uncommon or abnormal.
CONSIDERATION
The applicant maintains that accepting the new role with longer hours was something which might be said to have been beyond his control.
The respondent contends that the circumstances that occurred being the change in employment, the planning of a wedding and the birth of the applicant’s son were not beyond the applicant’s control, and that the applicant has not provided any evidence that these circumstances meet the ‘special circumstances’ criterion.
What this case really turns on is whether the applicant was responsible for taking on the new role. Coincidentally, it has been a great career move for Mr McNally to do that, but he still maintains nonetheless, that what he did was something which might be said to have been beyond his control. In that regard, the applicant obviously had choices open to him, even though he found himself in circumstances where change was required.
The respondent has referred the Tribunal to a recent decision of Tribunal Member Professor McCallum, namely in the decision of Nash v Secretary, Department of Education and Training [2016] AATA 991. In that case, the applicant unexpectedly found that she was able to secure a part-time position in childcare. It then followed that the employment which she had commenced part-time turned into a full-time role, not dissimilar to what has happened to Mr McNally in that he took on this position as junior estimator and then found himself taking on the position of senior estimator. It was, perhaps as with Ms Nash, not something that the applicant sought, but was, by circumstance, thrust upon him. That does not, for the applicant though, as with Ms Nash, amount in my view to special circumstances.
Mr McNally goes further and says he wouldn’t have even taken up the role of junior estimator and left the steel company had it not seemed to him that he was in danger of getting retrenched. Mr McNally has gone on, with some degree of success, in the building industry and it is the Tribunal’s view that there were options available to Mr McNally for him to choose from regarding which work and role he pursued.
DECISION
In the end, the Tribunal is not satisfied that special circumstances can be established in these circumstances.
Accordingly, the decision under review is affirmed.
I certify that the preceding 23 (twenty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie
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Associate
Dated: 28 February 2018
Date(s) of hearing: 29 January 2018 Applicant: By phone Solicitors for the Joined Party: L Holcombe, HWL Ebsworth Lawyers
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