Omar and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 8
•4 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 8
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200601032
GENERAL ADMINISTRATIVE DIVISION ) Re BIANCA OMAR Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT & WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Regina Perton Date4 January 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Regina Perton
Member
HIGHER EDUCATION ‑ student enrolled for full-time course – unable to obtain university based childcare – request for deferral not received by university – enrolment not withdrawn or deferred at census date – Student Learning Entitlements affected – whether grounds to re-credit entitlements – special circumstances – Ministerial guidelines – decision affirmed.
Higher Education Support Act 2003 ss 3-1, 70-1, 76-1, 79-1, 79-5, 79-10, 238-10
Student Learning Entitlement Guidelines, Chapter 5
REASONS FOR DECISION
4 January 2008 Regina Perton, Member 1. In late November 2005, Bianca Omar was informed that she had been successful in her application to study full time for a Bachelor of Education degree at Deakin University in the following academic year. Ms Omar enrolled in early January 2006. She had planned to utilise the university’s crèche to care for her young child. Unfortunately, she was unable to do so. Ms Omar decided that she would defer her studies. Ms Omar believes that she applied for deferral of her course before the census date for withdrawing from a course. The university has no record of a request between enrolment and the census date, 31 March 2006, for either deferral or withdrawal.
2. Ms Omar was enrolled as a Commonwealth supported student. That means she was entitled to study a prescribed number of subjects for which the Commonwealth loaned her the full fee amount (HECS-HELP) under what was then known as the Higher Education Contribution Scheme (HECS). Ms Omar incurred a HECS-HELP debt that she is obliged to repay to the Commonwealth. The Higher Education Support Act 2003 (the Act) sets out the number of student learning entitlements (SLEs) that the Commonwealth allocates to Commonwealth supported students. Upon enrolment and completion of a unit of study, a person’s total SLE entitlement will reduce and a HECS-HELP debt incurred. If a student is enrolled in a unit which she does not undertake but she has failed to withdraw by a specified census date, the SLE will nonetheless be reduced and the HECS-HELP debt incurred. In special circumstances, the SLE can be re-credited and the attached HECS-HELP debt remitted.
3. On 2 August 2006 Ms Omar challenged the decision to reduce her SLE. On 5 September 2006, the respondent’s delegate at Deakin University refused her application. On 28 September 2006, Ms Omar sought review of the original decision which was affirmed by a review officer on 3 October 2006. On 30 October 2006, Ms Omar lodged an application for review with the Tribunal.
4. The issue for the Tribunal is whether there are grounds to re-credit the SLE for the subjects in which Ms Omar enrolled for the first semester of 2006.
Legislation & Ministerial guidelines
5. Section 3-1 of the Act sets out the regime for financial support for higher education. Section 70-1 states that a person starts out with SLE equivalent to seven years of full-time study. This reduces as the person undertakes units of study. Section 238-10 of the Act provides for Student Learning Entitlement Guidelines to be issued by the Minister (Ministerial guidelines).
6. Section 76-1 of the Act describes the process whereby a person’s SLE is reduced.
(1) A person’s SLE is reduced if:
(a) at the end of the census date for a unit of study with a higher education provider, the person is enrolled in the unit; and
(b) the person is enrolled in the unit as part of a course of study…; and
(c) the person is a Commonwealth supported student in relation to the unit; and
(d) the person has, on or before the census date, completed, signed and given to an appropriate officer of the provider a request for Commonwealth assistance in relation to;
(i) the unit; or
(ii) where the course of study of which the unit forms a part is undertaken with the provider – the course of study.
(2) ...
(3) The reduction takes effect immediately after the census date for the unit of study.
…
7. Division 79 of the Act sets out the circumstances in which a person’s SLE can be re-credited. The relevant sections are as follows:
79-1 Main case of re-crediting a person’s SLE
(1) A higher education provider must, on the Secretary’s behalf, re-credit a person’s SLE … 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 section 79-5); and
(d) the person applies in writing to the provider for re-crediting of the SLE; and
(e) either:
(i) the application is made before the end of the application period under section 79-10; or
(ii) …
Note: A HECS-HELP debt related to a unit of study will be remitted if the SLE in relation to the unit is re-credited….
…
79-5 Special circumstances
(1) For the purposes of paragraph 79-1(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 during the period during which the person undertook, or was to undertake, the unit.
(2) The Student Learning Entitlement Guidelines may 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.
…
79-10 Application period
(1) If:
(a) the person applying under paragraph 79-1(1)(d) for the re-crediting of the person’s SLE in relation to a unit of study has withdrawn his or her enrolment in the unit, and
(b) the higher education 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 subsection (1) does not apply, the application period for the application is the period of 12 months after the end of the period during which the person undertook, or was to undertake, the unit.
8. The Ministerial guidelines, gazetted in July 2004, provide the following directions on the meaning of special circumstances in the Act:
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.
What happened after enrolment?
9. Ms Omar told the Tribunal that she had planned her studies around access to Deakin University’s crèche. Having her child cared for at the Burwood campus crèche would allow Ms Omar to attend classes and use the library but still have ongoing contact throughout the day with her child. When she went to the crèche to enrol her child, Ms Omar was informed that there was no vacancy and a waiting list of up to 12 months. She said that she looked at other childcare options but none were feasible. Ms Omar said that after her enrolment and the subsequent discovery of the unavailability of suitable childcare, she decided to defer her studies. She said that she had telephoned Deakin University in January 2006 and was told she was required to send in a form requesting deferral. She stated that she sent what she believes was the relevant form to the Geelong campus of the university where the administration for all Deakin’s campuses is based. The form was included in the pack she was sent prior to enrolment. She assumed that her request had been received and consequently did not follow up the lack of an acknowledgment or written approval of her request for deferral prior to the census date. Ms Omar said that she was not aware of any problem until she received a letter from the university requesting she enrol for the second semester of 2006. She telephoned the university’s administration and discovered that they had no record of a request for deferral. She then applied for review of the decision relating to SLE and attendant HECS-HELP debt. She is now working and has decided not to undertake the course.
10. Ms Omar said that she had looked at other centres when she found out that there were no vacancies for 2006 at the Deakin childcare centre. She either rang the centres or looked at their websites. She said that those in the Chelsea area where she then lived were either unsuitable or unavailable. Her mother could not care for the child as she was working full time. Ms Omar was not prepared to place her child in family day care as she believed he would be more secure within a centre. Ms Omar said that she had not looked for part-time child care as the timetable was not yet available when she enrolled. She said that she was still breast-feeding her child and hence wanted to have him close during the day.
11. Ms Omar said that she did not receive any correspondence - by mail or email, or any telephone calls from the university until August 2006.
12. In a statement dated 7 August 2007, Amanda Parish, Manager of Admissions, Enrolments and Records at Deakin University described the procedures for variation of enrolment. Before a variation can be approved, an enrolment details variation form (EV) must be approved by a course advisor or faculty enrolment officer. Ms Parish stated that there is no record of receipt of an EV from either Ms Omar directly or from the Faculty of Education. There is also no record of a personal or telephone enquiry linked to her name in the computerised records. Ms Parish stated that their records show that a final notice to complete enrolment was sent to Ms Omar at her recorded address on 10 March 2006. An encumbrance notice was sent on 2 May 2006. The university does not retain copies of such letters. Ms Parish stated that there is no record of any correspondence from Ms Omar before the submission of her EV in August 2006.
13. In her oral evidence, Ms Parish provided descriptions of the treatment of incoming EVs. If the form is received directly from the student, it is sent to the relevant faculty for signature before being processed. She said that the relevant form for deferral was not in the package sent out by Deakin in its initial letter congratulating the student on their offer of a place. Ms Parish indicated that the university has a call centre with 25 staff who may receive 1000 calls a day. There is no note on Ms Omar’s file of a call. However, if a generic call is made seeking information about procedures, it would not be on the system.
14. Ms Parish provided details of the university’s records of Ms Omar’s address to which notices had been sent which Ms Omar stated was the correct address at that time. She also described the procedures when a letter is returned to the university due to an incorrect address and the attempts made by her staff to contact the student if this occurs. She said that there was no record of receipt of any returned mail addressed to Ms Omar. She described in detail the mail processing procedures. Ms Parish acknowledged that it was possible that correspondence could go missing within such a large organisation.
15. Penny Sinclair, Team leader of Staff and Student Support at the Faculty of Education, Deakin University, provided a statement dated 31 July 2007. She stated that one of her responsibilities is liaising with students in relation to enrolment. Ms Sinclair stated that the EV and the university’s website states that the completed form must be returned to the Faculty Enrolment Officer in the relevant faculty for approval and not to the general administration. She indicated that she is the staff member who signs the EVs. She said that there is no record in the Faculty of having received an EV from Ms Omar in the first semester of 2006. Ms Sinclair has a record of receipt of an EV form from Ms Omar in relation to the second semester of 2006. Ms Sinclair stated that she has a record of emails sent by faculty staff during March 2006 asking her to complete audition requirements relating to a performing arts unit. The text of an email dated 1 March 2006 sent by Penny Thompson, an admission/enrolment officer in the Faculty of Education to bcto [Ms Omar’s initials] is as follows:
Dear Bianca
I have tried calling your mobile number but it belongs to someone else and you have no home number on our system. I am trying to contact you in regards to your performing arts major ACP101. You a re currently not enrolled in this unit and you will need to contact the arts faculty to get them to enrol you asap. Unfortunately I cannot do this for you as you do not appear on my list of having auditioned ...
16. On 13 March 2006, Ms Thompson sent a further email to the same address again indicating that she could not contact Ms Omar on the mobile number in the university’s records. She indicated that she was trying to contact her via email again as the last day for adding further units was that day.
17. In oral evidence, Ms Sinclair stated that she was an enrolment officer in the Faculty of Education from May 2005 to March 2007, before being promoted to her current role. She described what happens when a request for deferral was received at the faculty at the Burwood campus and the procedure of transmission of the form and information to the central administration at the Geelong campus. She said that if forms were sent by mistake to Geelong first, the customer service section would send it back to the relevant faculty before they processed it. Ms Sinclair said that if a student used the incorrect form, they would try to contact the student by phone or email and ask them to fill out an EV. She said that she and other staff in central records had checked every possible location on the system to see if anything was received from Ms Omar between enrolment and the lodgement of the EV in August 2006. She found nothing.
18. Ms Sinclair said that the address on the March 2006 emails would have been the Deakin University email address allocated to Ms Omar on enrolment. Ms Omar said that she did not see the emails as she was not aware of her Deakin University email address and furthermore, had not accessed it as she believed her request for deferral had already been approved. Ms Sinclair said that she and her colleagues do not usually send letters with content such as those in the emails to the home address by ordinary post.
19. On 10 September 2007, the respondent provided the Tribunal with a copy of Ms Omar’s original enrolment form. The Tribunal was also informed that at the time of Ms Omar’s enrolment, access to an email account was generated when a student’s enrolment was processed. The student was then required to access the university website and enter details such as their student identification number and date of birth. The system then informed the student of their username and password for the email account.
20. On 27 September 2007, Ms Omar commented that the mobile number on the enrolment form is her number but that the contact numbers cited by Ms Sinclair in her oral evidence as the numbers called were not those on the form. Ms Omar also commented that Ms Sinclair, whom she saw on her initial enrolment day, had told her that the facility for setting up email accounts had not yet been introduced.
Are there grounds to re-credit the SLE?
21. The parties agree and the Tribunal is satisfied that Ms Omar meets the requirements of subsections 79-1(1)(a) and (b) of the Act. The Tribunal also finds that she applied to re-credit her SLE within the required period (s 79-1(1)(d) and (e)). However, there is disagreement as to whether her situation fits within the definition of special circumstances as set out in ss 79-5(1)(c) and 79-5 of the Act and the Ministerial guidelines.
22. The situation faced by Ms Omar is indeed unfortunate. She is liable to the Commonwealth for a HECS-HELP debt despite not commencing her Bachelor of Education. However, notwithstanding its sympathy for her plight, the Tribunal is required to make its decision based on the legislation and prescribed guidelines.
23. Ms Omar made her application for re-crediting of her SLE on the basis that she deferred her enrolment in the course. She did so as she was unable to obtain a childcare place at the Deakin University crèche. In terms of childcare, Ms Omar was not prepared to leave her child in alternative care at the time of enrolment. She gave evidence that she had investigated some other childcare options but they were either not to her liking in terms of what she saw as a suitable environment for her child, or else unavailable.
24. Ms Omar believed that she had sent a request for deferral of her course and that the university, in failing to acknowledge her request, had agreed to do so. However, the university has no evidence of receipt of the request for deferral of enrolment for the first semester of 2006. The Tribunal accepts Ms Omar’s evidence that she believes she sent the request to the Geelong campus of the university, utilising a form that was part of the package sent to her by Deakin prior to her enrolment. Regrettably, she did not keep a copy of the form nor note its date of despatch. It appears that she may well have used the wrong form as Ms Parish gave evidence that the EV was not in the package sent to those selected for admission. The EV contained information that it should be sent to the relevant faculty, in this case the Faculty of Education. Ms Omar gave evidence that she did not do so, lending further weight to the possibility that she had not used the correct form. Whether it was due to the wrong form being used, a failure to actually post the form or mail going astray at or on the way to the university, the Tribunal is satisfied on the balance of probabilities that there was no EV received by the university prior to the census date.
25. To find that Ms Omar meets the requirement of special circumstances under the Act, the Tribunal must find that the circumstances were beyond her control (s 79-5(1)(a)); that they did not make their full impact on her until on or after the census date for the units in question (s 79-5(1)(b)); and, that the circumstances made it impracticable for her to complete the requirements for the unit that she was to undertake (s 79-5(1)(c)). The Ministerial guidelines set out the circumstances in which a person may meet each of these provisions.
26. To be satisfied that Ms Omar’s circumstances are beyond her control, the Tribunal must be satisfied that there is a situation that is unusual, uncommon or abnormal (5.5.5 of the Ministerial guidelines). Furthermore, the Tribunal must be satisfied that the circumstances in which she found herself did not arise due to her actions or inactions, either direct or indirect (5.5.1 of the Ministerial guidelines). The failure of Ms Omar to check on the status of her request for deferral is one of the factors leading to her failure to amend her enrolment prior to the census date. Had she checked on to the progress of her request prior to the census date, a period of more than two months after she believes she sent the form, she would have discovered that the university had not received it. Another relevant factor is her probable use of an incorrect form. The instructions on the requisite (EV) form clearly indicate that it should be sent to the relevant faculty, the Faculty of Education, rather than to the central Geelong address
27. The Tribunal is not suggesting that Ms Omar is fully to blame for the situation in which she found herself. The university’s attempts to contact her prior to 31 March 2006 were thwarted by their use of a university email address that she was not aware of nor had access to at that time. There also appear to have been telephone calls made to an incorrect mobile number although the university’s enrolment record shows the correct telephone number. The Tribunal notes that the university attempted to let Ms Omar know of the upcoming final dates for enrolment even though there does not appear to be a requirement for its officials to do so. It is also possible that things may have gone awry with mail deliveries to Ms Omar and to the university.
28. The Tribunal finds that the circumstances which led to the failure of Ms Omar to defer her enrolment prior to the census date were not beyond her control in consideration of the criteria set out in s 79-5(1)(a) of the Act and paragraph 5.5.1 of the Ministerial guidelines.
DECISION
29. The Tribunal affirms the decision under review
I certify that the twenty-nine [29] preceding paragraphs are a true copy of the reasons for the decision of Regina Perton, Member
(sgd) Ursula Noyé
Clerk
Date of hearing: 4 September 2007
Date of final submissions: 27 September 2007Date of decision: 4 January 2008
Advocate for the applicant: Self-representedAdvocate for the respondent: Ms A Linacre
Solicitor for the respondent: Clayton Utz
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