Nash and Secretary, Department of Education and Training
[2016] AATA 991
•5 December 2016
Nash and Secretary, Department of Education and Training [2016] AATA 991 (5 December 2016)
Division
GENERAL DIVISION
File Number(s)
2016/1393
Re
Kathleen Nash
APPLICANT
And
Secretary, Department of Education and Training
RESPONDENT
DECISION
Tribunal Professor R McCallum AO, Member
Date 5 December 2016 Place Sydney The decision under review is affirmed.
..................................[sgd]......................................
Professor R McCallum AO, Member
CATCHWORDS
HIGHER EDUCATION – VET FEE-HELP – enrolled in diploma at TAFE – no written request for withdrawal on or before census date – repayment of entire 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, 97
CASES
Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
SECONDARY MATERIALS
VET Administrative Information for Providers: September 2015
REASONS FOR DECISION
Professor R McCallum AO, Member
5 December 2016
BACKGROUND
The Applicant, Ms Kathleen Nash, is aged in her fifties. She left high school after completing year 10, and later on she undertook two years of face to face evening study at TAFE.
In the matter before me, most of the facts are uncontested by the parties, however, it is necessary to set them out in some detail.
The Redundancy of Ms Nash
Ms Nash was made redundant from her job in June 2013.
In August 2013, she commenced receiving NewStart Allowance.
In the same month, Ms Nash entered into an Employment Pathway Plan through WISE Employment. The plan stated that Ms Nash’s goal was to obtain full time employment in the Child Care industry.
Enrolment in a TAFE Course
To increase her qualifications, on 13 January 2014, Ms Nash enrolled in two units in a Diploma of Community Services Work at TAFE NSW - Western Sydney Institute, known as OTEN (TAFE). These units were Community Services 1 and Community Services 2. The diploma was taught via online learning. In other words, there was no face to face class-room time as students and teachers communicated electronically via computers and other devices. Subsequently, her enrolment was approved.
THE APPLICATION FOR VET FEE HELP ASSISTANCE
Schedule 1A of the Higher Education Support Act 2003 (Cth) (the HES Act), establishes a scheme whereby students may receive VET FEE-HELP assistance when they undertake study for accredited vocational education and training (VET) courses.
It is not necessary to set out the VET FEE-HELP scheme in great detail. It is sufficient to write that when students obtain VET FEE-HELP assistance, the federal Government loans students all or a portion of their tuition fees. However, this amount of money is paid directly to the education provider. Put another way, the Government loans TAFE students money comprising the whole or a portion of their tuition fees which are paid to their TAFE providers. Of course, the students are obliged to repay these loans to the Government when they are employed and when their income is above the designated income level.
Ms Nash successfully applied for VET FEE-HELP assistance. When she signed the VET FEE-HELP assistance form, she acknowledged that she had read the VET FEE-HELP Assistance booklet which detailed the rules of the scheme. When Ms Nash’s application for VET FEE-HELP assistance was accepted, the money was paid directly to her VET provider, being TAFE NSW - Western Sydney Institute. The amount of the loan to Ms Nash was $8,924.
Under the VET FEE-HELP assistance rules, there are two significant dates, the administrative date and the census date. The administrative date for Ms Nash’s courses was 14 February 2014, and the census date was 4 March 2014. In an email to Ms Nash dated 12 February 2014, the significance of these two dates was explained.
Under the rules, if Ms Nash withdrew from the courses on or before the administrative date, she could do so without penalty. Presumably the Government would be repaid the moneys by TAFE NSW by a simple book entry.
If Ms Nash withdrew from the courses after the administrative date, but on or before the census date, she would be required to pay a penalty of 10% of the FEE-HELP assistance moneys which had been loaned to her. In other words, Ms Nash would be required to pay $892.40.
Finally, if Ms Nash withdrew from the courses after the census date of 4 March 2014, unless special circumstances existed, she would be required to repay the entire amount of the loan that is $8,924.
The materials which were sent to Ms Nash also made it clear that if she wished to withdraw from her courses, her withdrawal had to be in writing.
THE MARCH 2014 EMAILS
On 1 March 2014, Ms Nash wrote an email to VET FEE-HELP, the material portion of which is as follows:
I am feeling extremely overwhelmed with the first two assignments in my course And feel I may have taken on the impossible.
My question to you is..... Am I able to change my course back to the certificate level without incurring any penalties????????
On 21 March 2014, a VET FEE-HELP officer responded to Ms Nash’s email of 1 March 2014. The material portion of which is as follows:
You will have to be withdrawn from your Diploma of Community Services Work (11454), as you have passed your admin date you will incur a 10% cancellation fee. Once you have been withdraw [sic], you are able to re-enrol into a course of your choosing with SEEK Learning.
Your census date was 4th of March however your below enquiry was made on the 1st of march. Please reply back to this email and confirm if you would like to withdraw from your Diploma asap so that I can backdate the withdrawal request. Please note that if no response is received, you will remain enrolled in your course.
Several further emails between Ms Nash and the VET FEE-HELP officers read as follows:
Ms Nash, 21 March 2014:
Am I safe in saying that the 10% cancellation fee is 10% of the total cost of the course???????? So in actual fact over $800.00??????????
VET FEE-HELP officer, 24 March 2014:
The 10% cancellation fee is $892.40, this fee is sent as an invoice by post and payable in instalments. Please confirm you would like to be withdrawn from your course asap or let me know how you would like to proceed as you have since passed your Census date; 4th of March 2014.
Ms Nash, 24 March 2014:
Thanx Chanel but I will keep my $892.40 and continue with my course.
VET FEE-HELP officer, 24 March 2014:
Thank you for confirming this with me.
SUBSEQUENT EVENTS
From an email written to the Tribunal by Ms Nash dated 3 August 2016, Ms Nash wrote that she was interviewed for a position at the Norwest Child Care Centre in the week of 3 March 2014. Ms Nash further wrote that she received an email from the Centre on or about 18 March 2014, seeking her availability to take over the manager’s position in March or April.
Ms Nash commenced employment at the Norwest Child Care Centre on or about 2 April 2014, and her position became full time on or about 12 May 2014. Her employment continued at the Centre until November 2014.
On 21 April 2014, TAFE NSW - Western Sydney Institute wrote to Ms Nash stating that they had not heard from her.
On or about 26 February 2015, Ms Nash commenced employment with Fraser Avenue Early Learning Centre.
In August 2015, Ms Nash’s accountant advised her that she was obliged to pay $1,678.55, following the processing of her tax return, due to her FEE-HELP debt.
On 3 September 2015, Ms Nash emailed VET FEE-HELP stating that she had requested withdrawal from the course and had followed up with a phone call. She requested VET FEE-HELP notify the Australian Taxation Office.
VET FEE-HELP replied by email on 14 September 2015 stating that from her email of 1 March 2014, which is reproduced above, she had not discontinued the course before the 4 March 2014 census date.
Ms Nash emailed a signed request to VET FEE-HELP on 30 September 2015. She requested a re-credit of her FEE-HELP balance. This request was denied.
On 9 November 2015, Ms Nash requested a review of this decision, and then on 21 December 2015 she sought a further review from a VET FEE-HELP officer, but to no avail.
Ms Nash now appeals to this Tribunal.
THE SPECIAL CIRCUMSTANCES DISCRETION
Pursuant to clause 97 of schedule 1A of the HES Act, this Tribunal has jurisdiction to review the decision of the VET FEE-HELP review officer.
Under schedule 1A of the HES Act Ms Nash may obtain a re-credit of her fee help balance if she can show special circumstances.
Subclause 46(2) of the HES 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.
It was not argued before this Tribunal that Ms Nash failed to comply with paragraphs (a), (b), (d) and (e) of subclause 46(2). Therefore the issue before me is whether Ms Nash complied with paragraph (c) of this subclause. It will be recalled that paragraph (c) requires the provider to be satisfied that “special circumstances apply to the person”.
The phrase “special circumstances” is elaborated in clause 48 of schedule 1A of the HES Act. This clause is as follows:
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.
The Respondent took the Tribunal to Chapter 10 of a document titled “VET Administrative Information for Providers: September 2015”. This document gives instructions to VET providers. It sets out what will be regarded as special circumstances, and what will not be regarded as special circumstances. This document is Government policy which I should apply, unless there are compelling reasons not to do so. See Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645.
In the matter before me, I will apply this policy as there are no good reasons why I should depart from it. In my view, the application of published policies enhances good and consistent administration.
Chapter 10 is lengthy. For the purposes of this decision I shall reproduce several extracts, however, I shall have regard to this policy in its entirety.
Special circumstances beyond a person’s control
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.
…
Special circumstances that do not make full impact until on or after the census date
Circumstances could be considered not to make their full impact on the person until on or after the census date for the VET unit of study if the person’s circumstances occurred:
·before the census date, but worsen after that day;
·before the census date, but the full effect or magnitude did not become apparent until after that day; or
·on or after the census date.
…
Special circumstances that made it impracticable for the person to complete the VET unit of study
The term impracticable is defined as ‘not practicable, that which cannot be put into practice with the available means’. The VET provider should keep this definition in mind when deciding whether a student’s circumstances made it impracticable for them to complete a VET unit of study.
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;
·employment related circumstances, for example where a person’s employment status or arrangements have changed so the person is unable to continue their studies, and this change is beyond the person’s control; or
·course related circumstances, for example, where the VET provider has changed the VET unit of study it had offered and the person is disadvantaged by either not being able to complete the VET unit of study, or not being given credit towards other VET units of study or courses.
THE HEARING
Ms Nash attended the hearing and represented herself.
Ms Nash gave evidence by affirmation. In my view, Ms Nash endeavoured to the best of her abilities to assist this Tribunal.
Ms Nash explained that she was made redundant in 2013, and subsequently received NewStart allowance.
Ms Nash said that she had 12 years’ experience working in the child care industry. She went to Wise Employment to seek a change in career as she believed her age would prevent her from obtaining employment in child care.
When asked what she knew about undertaking the diploma, Ms Nash said that it was a self-paced course where she would receive materials from OTEN, and that she could contact OTEN for assistance.
Ms Nash stated that at that time she did not own a computer, though she could access one at her local library. Ms Nash also said that her computer skills were not good at that time.
Ms Nash recounted that she had successfully applied for VET FEE-HELP assistance. However, she said that she did not understand the full ramifications of the census date in the overall scheme.
Ms Nash said that she recalled having a telephone conversation sometime after the email exchanges of 24 March 2014 with Ms Chanel Burgos, a VET FEE-HELP officer. She understood that Ms Chanel Burgos said in the telephone conversation to “leave it with me”. Ms Nash said that she understood this to mean that Ms Chanel Burgos would fix things up so that she would not have to pay the 10% penalty when she withdrew from the courses after the administrative date.
Ms Nash agreed that she had sent the email of 24 March 2014, which is reproduced above, where she wrote that she would continue with her courses.
CONSIDERATION
The issue before the Tribunal is whether or not I am satisfied that special circumstances apply to Ms Nash’s case pursuant to subclause 46(2) paragraph (c) of schedule 1A of the HES Act, as expounded in clause 48. I am required to determine, in accordance with paragraphs (a), (b) and (c) of clause 48 of schedule 1A of the HES Act, whether the circumstances of Ms Nash’s case were beyond her control, whether they did not make their full impact until on or after the census date, and whether they made it impracticable for Ms Nash to complete the requirements of the courses. As these three paragraphs are joined by the conjunction “and” they are cumulative. For Ms Nash to succeed, I must be satisfied that beyond control, no full impact and impracticability existed in Ms Nash’s case.
Did Ms Nash Have a Telephone Call With Ms Chanel Burgos?
In my view, there is only one major factual matter in contention between the parties. As I have recounted above, when summarising Ms Nash’s evidence, Ms Nash said that she had a telephone call with Ms Chanel Burgos after the email exchanges of 24 March 2014, and that she believed that Ms Chanel Burgos would fix things up.
Pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), the Respondent forwarded all of the relevant documents in this matter. These documents are known as the T documents. Two documents are apposite with respect to the issue of the telephone call. Document T12 sets out the email traffic concerning Ms Nash and the VET FEE-HELP provider. Document T20 records the correspondence between the parties with respect to the units of study. In neither document is there any file note or mention of a telephone call on or after 24 March 2014 between Ms Nash and Ms Chanel Burgos.
From the evidence before me, I am not satisfied that the telephone call took place. I surmise that Ms Nash was mistaken in her recollections. I find that no telephone call as described by Ms Nash in her evidence took place between herself and Ms Chanel Burgos on or after 24 March 2014.
Did Special Circumstances Exist In Ms Nash’s Case?
Ms Nash was interviewed for the Norwest Child Care Centre position in the week of 3 March 2014. She received an email inquiry from the Centre on or about 18 March 2014. I infer that Ms Nash was taking steps to obtain employment in the child care industry before the email exchange of 21 to 24 March 2014 which I have set out above.
In that email exchange, Ms Nash was offered the opportunity of having her withdrawal backdated to her inquiry email of 1 March 2014 which meant that she would only incur a penalty of 10% of the fee help assistance moneys. In her email of 24 March 2014, Ms Nash clearly stated that she would continue with her diploma courses. Perhaps she wrote this email in a hurry and without thinking through all of the issues.
However, I find that the taking up of employment while continuing with her online diploma course, did not amount to circumstances beyond her control. It is clear from the evidence that Ms Nash chose to engage in employment, leading promptly to full time employment while also choosing to continue with her courses.
As I have found that the circumstances in Ms Nash’s case were not beyond her control, she does not comply with subclause 46(2) paragraph (c) of schedule 1A of the HES Act when read together with clause 48 paragraph (a).
For completeness, I shall examine whether Ms Nash’s circumstances come within paragraphs (b) and (c) of clause 48.
From the evidence I further find that Ms Nash’s circumstances did not alter after the census date and that she suffered no adverse impact. As late as 21 March 2014 when she was taking steps to obtain employment, she had the opportunity to withdraw from the courses in accordance with her 1 March 2014 inquiry email and thus to withdraw before the census date.
Ms Nash did not commence employment at the Norwest Child Care Centre until 2 April 2014. There is no evidence that this employment impacted on her studies. As I noted above, on 21 April 2014, TAFE NSW wrote to Ms Nash saying that they had not heard from her. I surmise that Ms Nash may not have undertaken much study after her 1 March 2014 inquiry email.
Finally, I find that Ms Nash’s circumstances did not make it impracticable for her to complete her studies. There is no evidence of Ms Nash suffering any medical problems, nor is there evidence of any adverse family circumstances. Ms Nash sought employment, and also decided that she would continue with her courses. It is possible to undertake full time employment while continuing with online courses.
CONCLUSION
For the reasons set out above, I find that no special circumstances existed as enunciated in subclause 46(2) paragraph (c) when read together with clause 48 of schedule 1A of the HES Act in Ms Nash’s case.
I have sympathy for Ms Nash. I am of the view that she did not understand the implications of the administrative date and of the census date. While she received a large amount of material detailing the rules of the VET FEE-HELP assistance scheme, in my view she did not fully comprehend this scheme. For Ms Nash, it was a big step to attempt this type of online learning diploma which in hindsight may not have been an appropriate career move for her.
DECISION
The decision under review is affirmed.
I certify that the preceding 59 (fifty -nine) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member ....................................[sgd]....................................
Associate
Dated 5 December 2016
Date(s) of hearing 25 November 2016 Applicant In person Solicitors for the Respondent I Temby, Maddocks
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