PSVN and Secretary, Department of Education and Training
[2019] AATA 1912
•9 July 2019
PSVN and Secretary, Department of Education and Training [2019] AATA 1912 (9 July 2019)
Division:GENERAL DIVISION
File Number(s): 2017/6289
Re:PSVN
APPLICANT
AndSecretary, Department of Education and Training
RESPONDENT
DECISION
Tribunal:Bill Stefaniak AM RFD, Senior Member
Date:9 July 2019
Place:Sydney
The decision under review is affirmed.
.............................[SGD]...........................................
Bill Stefaniak AM RFD, Senior Member
CATCHWORDS
HIGHER EDUCATION SUPPORT – FEE-HELP debt – application for re-crediting – whether special circumstances apply – skin condition – whether applicant’s circumstances made their full impact on or after the census date – where medical condition made their full impact on applicant before the census date – where no special circumstances – decision affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth) ss 104-25, 104-30
REASONS FOR DECISION
Bill Stefaniak AM RFD, Senior Member
9 July 2019
BACKGROUND
On 5 July 2017, the applicant submitted an application to his University seeking the re-crediting of his FEE-HELP debt under subsection 104-25(1) of the Higher Education Support Act 2003 (Cth) (“the Act”) in relation to a unit of study (namely LAWS 6903 Interpreting Commercial Contracts) within a Graduate Diploma in Law which he was studying for.
His application was declined as was his subsequent application to review that decision. Accordingly he appealed to this tribunal for a review of that decision.
The matter was heard before this tribunal on 22 November 2018 and as a result of information that came to light during the hearing, was adjourned to enable the parties to provide further information which was duly provided.
The facts, which the tribunal notes are not in dispute, are that since 2002 the applicant has suffered from a severe and debilitating skin disease which has, from time to time, made it impossible for him to work or study. His Doctor on 1 November 2002 wrote the condition has had "a significant impact on his life, both time wise and related to the disease. The disease affects the face and the impact is obviously made worse because of this."
Despite ongoing problems and flare ups over the years that affected his ability to work and study, the applicant was able to complete courses at University and hold down jobs as a legal practitioner from time to time. Indeed, for the last several years he has been employed by a firm that clearly values his services and is happy to fit in with his medical issues as and when they crop up. He appears to be, despite his issues, a valued employee.
Because of his issues, the applicant has from time to time had to pull out of courses and apply for exemptions and deferments and up until this incident has always been able to get his FEE-HELP re-credited.
Unfortunately for the applicant he was not on the current occasion successful in his attempt for re-creditation.
FACTS
After initially having to defer his Graduate Diploma in Law because of illness, on 8 December 2016 the applicant enrolled in four units of study, including the subject unit in question.
He subsequently withdrew from the other three units before the relevant census date for those units.
The unit we are concerned with (“the unit”) in its Unit of Study Outline stipulated that students had to attend 70% of classes to satisfy the pass requirements (in this case that meant three out of the four days offered). The outline went on to say “Failure to meet this requirement may result in the student being precluded from sitting the final assessment and being discontinued from the unit of study resulting in an Absent Fail or Discontinue - Fail Grade." It went on to say that “Exemptions may only be considered by the Unit Coordinator/Lecturer upon satisfactory evidence of compelling grounds i.e. sudden illness or serious misadventure which occur during class time. For units offered in intensive mode, participation in all scheduled sessions is essential."
The unit ran for four days on 16, 17, 20 and 21 February 2017. The assessment for the unit consisted of two essays due on 16 February 2017 and 4 April 2017 respectively.
The unit commenced on 23 January 2017 and on 16 February 2017 the applicant submitted his first essay. He also submitted an email request to be exempted from the requirement to attend classes on the basis of his skin condition which had flared up again.
On that day he was sent an email in reply from the postgraduate team leader of the Law School which advised him that: a) the minimum course attendance requirement was 70% and the lecturer "may refuse acceptance of an assignment from students who do not meet that requirement"; b) advised him to formally apply for an exemption from class attendance by submitting a formal Special Consideration application; c) suggesting that if he was unable to attend any of the classes, he should withdraw from the unit "prior to the withdrawal date of 28 February 2017 in order to avoid incurring a full fee liability" and; d) encouraging him to register with the University's Disability Services to ensure he got the appropriate learning support.
On 17 February 2017, the applicant submitted an application for Special Consideration for exemption from the attendance requirements of the course on the basis of his skin condition.
The census date was in fact 24 February 2017 not 28 February 2017 as stated by the postgraduate team leader. Had the applicant sought to withdraw on 28 February 2017 as a result and been refused I would have accepted his withdrawal as a result of him being given the wrong date. However, nothing turns on this as he set his heart on pursuing his application for Special Consideration, which the University refused on 2 March 2017 and which he promptly appealed and was again unsuccessful on 8 March 2017. The Associate Dean of Postgraduate Coursework on 9 March 2017 also indicated to the applicant by email that he too was unable to exempt him from the attendance requirements but that it was appropriate to grant the applicant a Discontinue – Fail Grade.
As already indicated, the applicant applied for a remission of his FEE-HELP debt on 5 July 2017 and was unsuccessful. His application was accompanied by a medical certificate letter from his Doctor, Dr “C” stating he was "totally unable to study between 13 and 26 February 2017;" a further medical certificate from the same doctor dated 13 February 2017 stating that he "will be unfit to attend his university class" in the period from 13 February 2017 to 26 February 2017 inclusive; and a further certificate from Dr “C” dated 5 July 2017 which stated that the applicant "has been intermittently sick (a total visit count of 18 times) and unable to carry on his study" in the period from 3 February 2017 to 5 July 2017 inclusive.
The applicant gave evidence that he did not attempt to complete his second assessment as he was awaiting news of the success of his application for exemption from classes. I agree with him that that was sensible in all the circumstances and nothing in my view turns on that point.
Counsel for the respondent also during the course of the hearing conceded that there was no way the applicant could have been expected to attend the classes on 16, 17, 20 and 21 February 2017 due to his ailments. The problem was that his inability to attend to his studies occurred prior to, rather than after, the cut off period of 24 or 28 February 2017 (whichever date one wished to apply due to the postgraduate team leader’s error.)
A further issue emerged during the hearing and that was that during the course of 2017 and well after this course finished in April 2017, the University decided not to offer this course in 2018. It was already not going to be offered in the second semester of 2017, but for 2018 it was decided to also not offer it. Indeed, the only commensurate course on offer was in the UK. The tribunal and the applicant both raised the question of what effect this had i.e. was the fact that due to circumstances beyond all parties’ control it was now impossible for the applicant to pick up this course and as this event occurred well after the cut off period did it amount to special circumstances?
THE LAW
Paragraph 104-25(1)(c) of the Act provides that "A higher education provider must (emphasis added) 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…the provider is satisfied that special circumstances apply to the person."
Subsection 104-30(1) of the Act goes on to say that "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 persons 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 of study.”
DISCUSSION
As indicated to the parties towards the end of submissions, it was obvious from the evidence that the applicant’s medical condition made it impossible for him to complete the course requirements prior to the census date and therefore, whilst beyond his control, they did make their full impact apparent from before the census date, namely from about 13 February 2017 onwards, and thus made it impracticable for him to complete the requirements of his unit from that time onwards. Accordingly his medical circumstances are not special in this instance.
Further, whilst his application for exemption is an understandable reason for him not withdrawing before the census date, he was reliant on it being successful. Whilst it was apparent he felt he was not well served by the postgraduate team leader, apart from her error as to the census date, I cannot find anything else she did wrong. She even advised him on 16 February 2017 to consider withdrawing before the census date. He had indeed had experience in doing so before due to his ailment on other occasions with other units
He took a chance on his application. I'm satisfied he did so with his eyes wide open as to risks. Unfortunately it did not work and the circumstances around it do not in themselves amount to special circumstances. Accordingly he fails on that ground.
However, at first blush, the fact that the course ultimately is not offered again in Australia could perhaps be construed as a special circumstance. That decision is beyond his control, its full impact on him is not apparent until well after the census date (although it may not have had any bearing on making it impracticable for him to complete the requirements for the unit in the period he undertook or was to undertake the unit save as to effecting his future ability to undertake a similar unit in future).
Unless there are some other considerations, this fact, which only cropped up months after the census date, appears to have some legs.
The tribunal has carefully considered the submissions of the parties on this issue.
Unfortunately for the applicant there are several points against him. To start with the definition of "unit of study" in Schedule 1 of the Act includes the following: "If a higher education provider provides the same subject or unit in respect of more than one period, the subject or unit is taken to be a different unit of study in respect of each period” (emphasis added). So, the effect of this is to deem the same unit being offered in an impossible location like the UK a "different unit of study", just as it would be if it was offered in 2018 at the University.
I am further persuaded by the example given by the respondent in their further submissions on this point, namely where the respondent gave the hypothetical example of “John” who enrols in trimester 1 in a unit of contract law, fails his final exam and thus fails the unit and incurs a FEE-HELP debt because he was enrolled in the course after the census date. He then enrols in the unit again in trimester 2, becomes ill and withdraws before the census date and as a result does not incur a FEE-HELP liability for the trimester 2 unit. John enrols again in the same unit in trimester 3 and passes the exam thus passing the unit. John incurs a FEE-HELP liability for the trimester 3 unit in addition to his trimester 1 liability.
I must agree with the respondent’s submissions on this point.
Had the applicant taken the prudent course he would have withdrawn whilst he could. He had done it before and he was not guaranteed success by just relying on his application for dispensation. Unfortunately, there are no legally applicable special circumstances in this case.
Unfortunately, for the applicant, for the reasons given above, his appeal is unsuccessful and the decision appealed from is affirmed.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member
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Associate
Dated: 9 July 2019
Date(s) of hearing: 22 November 2018 Applicant: By phone Solicitors for the Respondent: Maddocks Lawyers
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