Sadek and Secretary, Department of Education
[2017] AATA 1399
•31 August 2017
Sadek and Secretary, Department of Education [2017] AATA 1399 (31 August 2017)
Division:GENERAL DIVISION
File Number: 2016/0884
Re:Nicole Sadek
APPLICANT
AndSecretary, Department of Education
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:31 August 2017
Place:Sydney
The decision under review is affirmed.
..................................[sgd].....................................
Senior Member A Poljak
Catchwords
HIGHER EDUCATION SUPPORT – HECS-HELP – remission of debt – special circumstances – whether the applicant’s circumstances were beyond her control – whether the applicant’s circumstances made their full impact on or after the census date – medical evidence – Tribunal does not find special circumstances – decision affirmed
Legislation
Higher Education Support Act 2003 (Cth), s 36-20, 36-21, 87-1
Secondary Materials
Administration Guidelines 2012, Chapter 3
REASONS FOR DECISION
Senior Member A Poljak
31 August 2017
In 2014, Nicole Sadek (“the applicant”) was enrolled in a Bachelor of Business and Commerce at the University of Western Sydney (“UWS”). On 19 December 2014, the applicant submitted an application to the UWS for remission of her HECS-HELP debt under section 36-20 of the Higher Education Support Act 2003 (Cth) (“the Act”) for the following units of study undertaken during spring semester (July-November) 2014 (“the Units”):
(a)Processes and Evaluation in Employment Relations (200557);
(b)Reward and Performance Management (200739);
(c)Human Resource and Industrial Relations Strategy (200740).
The Units each had an equivalent full-time study load and value of 0.125.
The census date, being the last day the applicant could withdraw from the Units without penalty, was 31 August 2014 (“the relevant census date”).
By letter dated 9 January 2015, UWS declined the application (“the decision”). On 20 November 2015, the applicant lodged a further document titled “Withdraw without Academic Penalty Application” to UWS with respect to Units 200575 and 200739.
Given that UWS had already considered and made a decision in regards to the remission of a HECS-HELP debt with respect to the Units, the “Withdraw without Academic Penalty Application” was treated by UWS as a review application for reconsideration of the decision dated 9 January 2015.
On 15 January 2016, UWS notified the applicant that the appeal was dismissed because the review application was not lodged within the specified timeframe (“the reviewable decision”)
The issue for determination by the Tribunal in these proceedings is whether subsection 36-20(1) of the Act applies to the applicant in respect of the Units and, more specifically, whether there are “special circumstances” that applied to the applicant.
A determination of whether “special circumstances” apply requires an assessment of whether the applicant’s circumstances satisfy the requirements of paragraph 36-20(1)(d) and subsection 36-21(1) of the Act.
RELEVANT LEGISLATIVE PROVISIONS
HECS-HELP is a loan scheme to help eligible students pay their student contribution amounts through a loan or upfront discounts. Pursuant to section 87-1 of the Act, a student may be entitled to HECS-HELP assistance based on their student contribution amounts for units of study, less any upfront payments. The assistance is paid to a higher education provider to discharge the student’s liability to pay their student contribution amounts.
A person can apply to a higher education provider for the remission of their HECS-HELP debt in respect of a unit of study under section 36-20 of the Act. Subsection 36-20(1) sets out the circumstances in which a higher education provider must determine that section 36-20 applies. Relevant to this matter, subsections 36-20(1)(d), (e) and (f) of the Act provide:
(d) the provider is satisfied that special circumstances apply to the person (see section 36-21); and
(e) the person applies in writing to that provider for either or both:
(i) the repayment of any amounts that the person paid in relation to his or her *student contribution amount for the unit; or
(ii) the remission of the person’s *HECS -HELP debt in relation to the unit; and
(f) either:
(i) the application is made before the end of the application period under section 36 -22; 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.
Subsection 36-20(2) of the Act states that, if section 36-20 applies, the higher education provider must both pay the person the amount of their student contribution of the unit of study and pay the Commonwealth an amount equal to the HECS-HELP assistance the person was entitled for the unit.
Subsections 36-21(1) and (2) of the Act provide that:
(1) For the purposes of paragraph 36-20(1)(d), special circumstances apply to the person if and only if the higher education provider 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; 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 Administration 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. [Emphasis added]
In accordance with section 36-21(2) of the Act, I also consider the Administration Guidelines. Relevantly, Chapter 3 of the Administration Guidelines specifies the circumstances in which a higher education provider will be satisfied that ‘special circumstances’ exist:
3.5 CIRCUMSTANCES BEYOND A PERSON’S CONTROL
3.5.1 A 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.
3.5.5 The situation referred to in paragraph 3.5.5 [sic] must be unusual, uncommon or abnormal.
3.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE
3.10.1 A 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.
3.15 CIRCUMSTANCES THAT MAKE IT IMPRACTICABLE FOR THE PERSON TO COMPLETE THE REQUIREMENTS
3.15.1 A 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.
The determinative issues for the Tribunal are whether the circumstances of the applicant were:
(i)beyond her control; and
(ii)did not make their impact on her until on or after the census date for the unit of study and question; and
(iii)made it impractical for her to complete the requirement of the unit during the relevant period.
The Applicant’s Circumstances and Medical Evidence
The respondent does not dispute that the applicant suffers from significant medical issues.
At hearing, the applicant advised that she suffered from severe anxiety and did not attend university much in 2014, as at that time “she had many problems”. She advised that she had deferred her course multiple times because she was unable to attend classes. She said that she had stress-related issues such as a sensitive stomach and “vomited a lot”. Her evidence was that sometimes she was okay; other times she could not make decisions. The applicant advised that during the first semester of 2014, she completed two courses but could not really remember what her condition was like at that time. She said that her energy fluctuated and that she found her drive to the university stressful. The applicant advised that she was too embarrassed to get help from the university even though it was offered to her.
In a medical certificate dated 29 September 2014, the applicant’s treating medical practitioner, Dr Abdullah Alaadin Emin, states that the applicant has been his patient for the last five years. He advises that the applicant is suffering from haemorrhoids, anxiety, depression, constipation, gastritis and joint pain throughout her body. Dr Emin says the applicant is under his regular treatment and that her medical issues are ongoing.
In a further medical certificate dated 17 August 2015, Dr Emin states that the applicant’s “conditions were really worse last year between August-November. She was having very painful haemorrhoids April last year as well and she was treated by having injection and she is still under care of her general surgeon”.
Progress Notes dated 10, 19 and 27 March 2014 record upper abdominal pain, the suggestion that the applicant attended emergency. Progress Note dated 23 June 2014, records the applicant underwent a gastroscopy and received a haemorrhoid injection on 22 April 2014 and was unwell for a period of two weeks following the procedure.
The applicant was seen by Dr Emin on 23 June 2014, and was certified not fit to undertake an exam on 6 May 2014 following the gastroscopy performed on 22 April 2014. The applicant was seen by Dr Emin on 24 June 2014, and a medical certificate was issued. He states that her “condition is quite recurrent and her symptoms are intermittent” and that she continues to suffer pain, nausea and tiredness and receive treatment following the gastroscopy on 22 April 2014.
In a letter dated 29 September 2014, Dr Emin notes that the applicant advised she had not been missing out on university due to her chronic illness.
A GP Mental Health Care Plan completed by Dr Xue Sandy Liang on 20 April 2015, diagnoses the applicant with generalised anxiety. Dr Laing recommends a number of health management actions and strategies including referral to a specialist (psychologist).
In a letter dated 1 December 2015, Dr Emin states that the applicant “has been worse over the last few weeks as her psychological symptoms are getting worse which all affecting her physical complaints as well, her weight is quite labile due to her IBS. She is seeing me on a regular basis since 2008, her symptoms are intermittent, she gets bouts of severe symptoms specially during her stressful life situations like exam and during some personal problems”.
In a letter dated 2 August 2016, Dr Emin states that the applicant has been seeing him for more than 10 years and that “she is suffering from depression and anxiety for long time, she was getting worse around mid to late of 2014 and she was seeing me then more regular basis and more often at those times. She was not fit enough at that time to study and perform in her optimum way”.
In response to a summons to produce, Dr Emin listed, in the handwritten note affixed to correspondence, “consultation dates”. The dates listed are 23 June 2014, 25 June 2014, 29 September 2014 and 26 November 2014.
In a letter dated 9 January 2017, Dr Emin states the applicant “is suffering from depression anxiety full time, she was getting worse after 31/8/2014. She was seeing me then on more regular basis and will often at those times. She was not fit enough at that time to study and perform in her optimum way… Her medical conditions make it impractical for [the applicant] to complete the requirements of her units in the 2014 spring semester (from July to November 2014). Thanks”.
Were the applicant’s circumstances beyond her control?
There is no evidence that the applicant’s medical conditions were so severe that she could not take rational action or that her conditions debilitated her to the point where she could not process the information available to her about her enrolment, withdrawal and the census date. The applicant’s decision to study or not to study was her own.
As the applicant had been suffering from anxiety, depression for many years and experiences fluctuating symptoms, I find that her situation could not be described as ‘unusual, uncommon or abnormal’.
While I accept that the applicant’s medical conditions were not “within her control”, the applicant has not sufficiently demonstrated how her circumstances as a whole were beyond her control. Given the ongoing nature of her medical conditions over a number of years, the applicant ought to have understood her capacity to undertake the relevant subjects given the reactive and intermittent nature of her mental health and physiological conditions. The fact that the applicant’s medical conditions existed before the relevant census date meant that it was possible for her to withdraw from the Units before the relevant census date. This was within her control.
Did the applicant’s circumstances not make their full impact on her until on or after the census date for the unit of study?
The relevant census date was 31 August 2014. I do not accept that her circumstances only made their full impact until after the census date for the following reasons.
The medical evidence before the Tribunal establishes that the applicant has a long history of medical conditions that have been ongoing and chronic in nature. The applicant’s symptoms have punctuated over at least a five-year period and were suffered by the applicant in advance of her commencing the Units in July 2014. The only available evidence which goes to any change in the applicant’s condition is the evidence provided by Dr Emin in letters dated 17 August 2015, 2 August 2016 and 19 January 2017. The letters provide broad statements that the applicant’s condition was worse after the relevant census date, however no detail is provided as to how the condition was exacerbated and how this impacted on the applicant. Dr Emin also stated that the applicant required increased medical attention during the spring semester; however this is not consistent with the medical evidence as to the actual medical attention received by the applicant during that period.
In regards to her haemorrhoids, the bulk of the medical evidence shows that this condition was most problematic early to mid-2014; well before the relevant census date.
I accept that the applicant experienced fluctuating symptoms in relation to her medical depressive conditions for at least the past five years. Based on the evidence before me, I am not satisfied that the applicant’s circumstances did not make their full impact on her until after the relevant census date for the Units.
Did the applicant’s circumstances make it impracticable for her to complete the requirement of the unit during the relevant period?
The only evidence before the Tribunal that deals with impacts of the applicant’s condition are the letters from Dr Emin dated 2 August 2016 and 9 January 2017 and two medical certificates dated 29 September 2014 and 17 August 2015. In this evidence, Dr Emin does not express any view as to whether or not the applicant was capable of completing the Units during the relevant period or describe the impact that her illness had on her ability to complete the Units. Despite mentioning possible side effects of medications, there is no further detail provided about the impact of those side effects on the applicant’s ability to complete her studies.
In the letter dated 2 August 2016, Dr Emin states that the applicant was “not fit enough at that time to study and perform in her optimum way” however no further detail is provided as to how the medical conditions impacted on the applicant making it impracticable for her to undertake her studies. I also note that this letter was provided almost 2 years after the relevant census date. Again, the letter dated 9 January 2017, provides no further details or justification as to how it was impractical for the applicant to undertake her studies.
Unfortunately, the contemporaneous clinical notes are not sufficiently detailed such as to support the cogency of the medical views expressed by Dr Emin in his letters dated 2 August 2016 and 9 January 2017. On balance, I am not convinced from the medical evidence, that it was impractical for the applicant to complete the Units during the relevant period.
CONCLUSION
Pursuant to subsection 36-21(1) of the Act, special circumstances only apply to a person where the circumstances are beyond a person’s control and make their full impact on or after the census date and make it impracticable for the person to complete the requirements for the unit of study.
While the applicant’s fluctuating medical conditions may have made it impractical for her to complete her requirements for her enrolled units of study, I find that her circumstances were not beyond her control and her circumstances had made an impact on her before the census date. I therefore am satisfied that the applicant’s circumstances were not special circumstances as prescribed by section 36-20 of the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 39 (thirty- nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
..................................[sgd].....................................
Associate
Dated: 31 August 2017
Dates of hearing: 15 March and 10 May 2017 Applicant: In person Solicitors for the Respondent: Ms J Wilson, Ashurst
8
0
0