Penman and Secretary, Department of Education and Training

[2017] AATA 447

Penman and Secretary, Department of Education and Training [2017] AATA 447 (7 April 2017)

Division:GENERAL DIVISION

File Number:           2015/6237

Re:Connor Penman

APPLICANT

Secretary, Department of Education and TrainingAnd  

RESPONDENT

DECISION

Tribunal:Regina Perton, Member

Date:7 April 2017

Place:Melbourne

The Tribunal affirms the decision under review.

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

Regina Perton, Member

HIGHER EDUCATION – re-crediting of FEE-HELP fees – student enrolled for full-time course – claims to have lodged application for deferment or leave of absence – claim not processed – application for re-crediting of fees lodged after application period - whether special circumstances exist – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 – s19D(2)(b)
Higher Education Support Act 2003 - ss 104-25, 104-30, 104-35, 238-10
Higher Education Support Act 2003 – Administration Guidelines 2012; Chapter 3

REASONS FOR DECISION

Regina Perton, Member

7 April 2017

1. On 5 February 2014 Connor Penman enrolled in a Bachelor of Sport and Recreation Management and a Bachelor of Business course at Victoria University (the university).   He was to study four units in Semester 1, 2014 and four units in Semester 2, 2014.

2. Mr Penman attended classes in the first week of Semester 1, 2014 (24 to 28 February 2014) then decided he would not continue the course.  He claims that on 3 March 2014 he lodged a deferment application.  He received no correspondence from the university about his application. In April 2015 he discovered that he had incurred a debt under FEE-HELP (a loan scheme which provides financial assistance to students to pay for tuition fees for units of study which are not Commonwealth-supported) for the eight units, because the university had no record of deferment or intermission (leave of absence) in respect of the course.  On 20 May 2015 he submitted a course discontinuation form.

3. On 29 June 2015 Mr Penman applied to the university for remission of the fees and sought to have the debt re-credited to him on the grounds that the university failed to process his application prior to the census date for Semester 1, 2014 (the date on which financial liability is incurred by a student who is receiving FEE-HELP assistance).

4. On 6 November 2015 the university made a reviewable decision refusing to re-credit the debt on the basis that there was no attempt by Mr Penman during 2014 to seek an intermission or to withdraw from the course.  Mr Penman seeks review of that decision.

5. The matter was heard by another member of the Tribunal but pursuant to section 19D(2)(b) of the Administrative Appeals Tribunal Act 1975, the President of the Tribunal has directed that the Tribunal be reconstituted.  The reconstituted Tribunal has had regard to the all of the evidence before the previous Tribunal.  This includes a transcript of the hearing, the witness statements and the written and oral submissions made by both parties.

   ISSUES

6. The issues before the Tribunal are whether the remission application in relation to the Semester 1, 2014 units was made within the application period contemplated by the legislation and, if not, whether the Tribunal should waive the 12-month application period on the basis that it was not possible for Mr Penman to make the application before the end of the period.  The Tribunal also needs to consider whether special circumstances exist to warrant remission of the debt arising from the belief by Mr Penman that he had lodged the application for deferment.       

   LEGISLATION AND POLICY

7. If a person is enrolled in a unit which he or she does not undertake but from which the person has failed to withdraw by a specified census date, the person will incur the FEE‑HELP debt associated with that unit. 

8. There are a number of circumstances under which a student’s FEE-HELP balance may be re-credited under the Higher Education Support Act 2003 (the Act):

   104-25 Main case of re-crediting a person’s FEE-HELP balance
   (1A)...

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

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

   (aa) access to the unit was not provided by *Open Universities Australia; 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 104-30); 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 section 104-35; 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.

   104-30 Special circumstances

   (1) For the purposes of paragraph 104-25(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 in the period during which the person undertook, or was to undertake the unit.

   The expression application period is defined in s. 104-35 in the following way:

   (1) If:

   (a) the person applying under 104-25(1)(d) for the re-crediting of the person’s *FEE-HELP balance 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.

   (1A)...

   (2) If subsections (1) and (1A) do 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.

   Section 238-10(1) of the Act allows the Minister to issue guidelines.  The Ministerial guidelines, namely the Higher Education Support Act 2003 – Administration Guidelines 2012 (Administration Guidelines), provide the following directions on the meaning of special circumstances in the Act:

   3.1 PURPOSE

   3.1.1The 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 (paragraph 36-21(1)(a) of the Act);

   (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 36-21(1)(b) of the Act); and

   (c)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 (paragraph 36-21(1)(c) of the Act).

   3.5 CIRCUMSTANCES BEYOND A PERSON’S CONTROL

   3.5.1A  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.

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

   3.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE

   3.10.1A 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.

   3.15CIRCUMSTANCES THAT MAKE IT IMPRACTICABLE FOR THE PERSON TO COMPLETE THE REQUIREMENTS

   3.15.1A 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.  For example, where a person’s medical condition has changed to such an extent that he or she is unable to continue studying; or

   (b)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; or

   (c)employment related circumstances.  For example, where a person’s employment status or arrangements have changed so that the person is unable to continue his or her studies, and this change is beyond the person’s control; or

   (d)course related circumstances.  For example, where the provider has changed the unit it had offered and the person is disadvantaged by either not being able to complete the unit, or not being given credit towards other units or course.

   A person is unable to complete the requirements for a unit if the person is unable to:

   (a)undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements in order to meet their compulsory course requirements; or

   (b)complete the required assessable work; or

   (c)sit the required examinations; or

   (d)complete any other course requirements because of their inability to meet (a), (b) and (c) above.

   EVIDENCE

9. In his affirmed witness statement, Mr Penman told the Tribunal that he submitted the deferment application form before the census date of 31 March 2014 for the Semester 1, 2014 units and before the census date of 31 August 2014 for the Semester 2, 2014 units.  He said that his actions on 3 March 2014 were sufficient to constitute lodging the appropriate form.  He explained that he attended Student Services at the Footscray Park campus and handed a deferment application to a staff member, who told him that no further action was required and that the application would be processed.  He said that Mr H Jacob, another student, was present and witnessed the lodgement.

10. Mr Penman stated that from 26 February 2014 to 27 April 2015 no correspondence or notifications were received from the university to his personal email, mobile telephone or postal address.  During cross-examination, he conceded that he did not log in to the university’s internal system (VU Connect) to check his enrolment status because he assumed that he had been granted a deferment or leave of absence.  He said that in April 2015 when completing his tax return for 2013/14 his tax agent informed him of the FEE‑HELP debt.  He said that after contacting the university he lodged a course discontinuation application on 20 May 2015.  He said that on 29 June 2015 he sought to have the debt re-credited.

11. At the hearing Mr R Penman told the Tribunal that his son had at all times acted reasonably because he had lodged the appropriate form for deferment and was not aware until April 2015 that he was still enrolled in his course.  Under cross-examination he agreed that after the first week of classes he discussed the course with his parents and decided to defer the course. He said that he was aware of the census date.  He said that he printed the appropriate form from the university’s website and believed it was an application for deferment or leave of absence.  He agreed that at the time he was not aware that deferment and intermission are in fact separate issues and that each requires a different application form.  He also agreed that he did not recall if he read on the application for deferment that the form needed to be submitted before enrolment.  Further he agreed that he was not aware of the university policies at the time relating to the steps to be taken to apply for either deferment or intermission.  He conceded that he had signed a declaration, when enrolling, that he acknowledged that the university would communicate electronically and that he would abide by the university’s statutes, regulations and policies.

12. Mr R Penman said that his son had no reason to be concerned that the university had failed to confirm that he had been granted either a deferment or intermission because he had completed Year 12 shortly before enrolling in the course and had had no previous experience in administrative matters of this type.   

13. In a Statutory Declaration dated 18 September 2015 Mr H Jacobs said that he witnessed Mr Penman submit the course deferment application to Student Services at the Footscray campus of the university in March 2014, prior the census date.

14. In a Statutory Declaration dated 23 September 2015 Ms J Penman, Mr Penman’s mother, said that in March 2014 she assisted Mr Penman to complete an application for deferment of his course.

15. In an Affidavit dated 24 March 2016 Ms S Thompson, General Manager Business Support & Reporting at the university, stated that a student’s email account is created after enrolment.  She said that between 24 February 2014 and 26 April 2015 Mr Penman did not access Student Connect, and that from the date of his enrolment the university sent him a number of emails in relation to his enrolment.                   

16. In an Affidavit dated 24 March 2016 Ms S English, Coordinator - Service Improvement and Operations at the university, stated that deferment is available to a student in circumstances where the student has received an offer from the university but has not yet enrolled in a course.  If a student is already enrolled in a course and wishes to take time off from studies, the student cannot defer enrolment but is able to apply for leave of absence or intermission.  Ms English noted that since 2013 the university has employed casual staff to act as concierges during the peak period (1 February to 31 March and 1July to 31 August each year). These staff members collect forms, assist students with the use of computers, and provide directions on campus.  She said that staff were trained to advise students to consult the university’s electronic system to confirm the status of their application for deferment or intermission.  Reminder emails were also sent to students by the university.  Ms English stated that there was no record of an application for deferment or intermission submitted by Mr Penman in 2014.  

    ARE THERE GROUNDS TO RE-CREDIT THE FEE-HELP DEBT?

17. In relation to the application period specified in paragraph 104-25(1)(e) of the Act in respect of the Semester 1, 2014 units, paragraph 104-25(1)(e) in conjunction with paragraph 104-35(2) of the Act, requires an application for the removal of financial liability with respect to a unit of study to be made within 12 months after the expiry of the period in which the person undertook, or was to undertake, the unit. This requirement can only be waived on the ground that it was not possible for the application to be made before the end of that period (paragraph 104-25(1)(e)(ii)).

18. In respect of the Semester 1, 2014 units, the study dates were 24 February 2014 to 20 June 2014.  The last date for examinations was June 2014, and examinations for the units in which Mr Penman was enrolled were held on 2, 4, 6 and 11 June 2014.  As Mr Penman applied for remission on 29 June 2015 the Tribunal finds that the remission application for the Semester 1, 2014 units was made more than 12 months after the end of the period in which Mr Penman was to undertake the units.

19. Consequently the Tribunal must consider whether to waive the application period in respect of Semester 1, 2014, requiring an assessment of whether it was not possible for Mr Penman to make the remission application before the end of the 12-month period for each unit.  The Tribunal takes into account Mr Penman’s evidence that he did not know about the financial liability until he was preparing his 2013/14 tax return.  However if he had read the correspondence from the university about his enrolment and FEE-HELP liability; accessed his university email account to verify the status of his enrolment after 3 March 2014; or made inquiries with the university after hearing nothing about his deferment application, he would have realised that according to the university he had remained enrolled in the units after the census date and had incurred financial liability.

20. Therefore the Tribunal finds that it was possible for Mr Penman, by acting reasonably in the circumstances, to have made the remission application within the application period, and his failure to lodge the remission application for the Semester 1, 2014 units within the prescribed period was due to his failure to take the necessary steps.  Accordingly in respect of the Semester 1, 2014 units section 125(1)(e) of the Act is not satisfied and Mr Penman cannot succeed in his application.

21. In respect of the Semester 2, 2014 units (for which the remission application was made within the 12-month period), the Tribunal is required to consider whether special circumstances apply to the person under s 104-25(1)(c) of the Act.

22. To find that Mr Penman meets the requirement of special circumstances under the Act for a particular unit, the Tribunal must be satisfied that the circumstances which occurred were, as set out in s 36-21(1) of the Act, beyond his control with respect to that unit; and that they did not make their full impact on him until on or after the census date for that unit; and those circumstances made it impracticable for him to complete the requirements of the unit in which he was enrolled.  Each of these elements must be satisfied for there to be special circumstances to apply under the Act.

23. There is no general discretion as to what constitutes special circumstances and the Administration Guidelines set out the circumstances in which a person may meet each of the provisions of s 36-21(1). 

24. The Tribunal needs to be satisfied that Mr Penman’s circumstances were beyond his control ([3.5.1] of the Administration Guidelines) and that his situation is unusual, uncommon or abnormal ([3.5.5] of the Administration Guidelines).   

25. The Tribunal accepts that Mr Penman consulted his family after the first week of classes in Semester 1, 2014 and decided to seek a deferment of his enrolment.  The Tribunal accepts his evidence, supported by the Statutory Declaration from Mr Jacobs, that he attended Student Services on 3 March 2014 with the intention of lodging a deferment application form and that he was aware of the requirement that he lodge the application by the census date of 31 March 2014.

26. However Mr Penman was unsure about which form he claimed to have submitted.  If he submitted a deferment application, it was not possible for deferment to be granted as he had already enrolled in his course.  This requirement was stated clearly on the application form.  As such it was his responsibility to ensure that the correct form had been submitted and he failed to do so.  Further, it was Mr Penman’s responsibility under the university’s regulations and policy to lodge an application for intermission in his particular circumstances.  He failed to do so.

27. The Tribunal finds that a reasonable student in Mr Penman’s position could and would have taken appropriate steps to confirm that any application lodged by him had been received, processed and granted before the census date.  In his own evidence Mr Penman conceded that he had not taken any steps to verify the outcome of his application, either accessing the university’s email system or by other means such as telephone or another personal attendance at Student Services.

1. Consequently the situation Mr Penman found himself in regarding a financial liability is a direct result of his failure to take reasonable steps that were open to him at the relevant time, and the circumstances were not beyond his control.  Therefore they were not special circumstances within the meaning of the Act and policy.

   CONCLUSION

2. The Tribunal is not satisfied that Mr Penman meets the criteria for re-crediting of the FEE‑HELP debt for the Semester 1, 2014 units or the Semester 2, 2014 units.

   DECISION

3. The Tribunal affirms the decision under review.

31.     I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision of  Regina Perton, Member

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Associate

Dated   7 April 2017

Date of hearing	4 May 2016
Representative of Applicant	Mr R Penman
Solicitor for the Respondent	Mr J Bird, Clayton Utz Lawyers