Sadouet and Secretary, Department of Education, Skills and Employment
[2021] AATA 5290
•10 August 2021
Sadouet and Secretary, Department of Education, Skills and Employment [2021] AATA 5290 (10 August 2021)
Division:GENERAL DIVISION
File Number(s): 2018/7736
Re:Kiri Joan Sadouet
APPLICANT
AndSecretary, Department of Education, Skills and Employment
RESPONDENT
DECISION
Tribunal:Senior Member Dr N A Manetta
Date:10 August 2021
Date of written reasons: 13 September 2021
Place:Adelaide
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision as follows: in respect of the two courses the applicant took and failed, namely, “Environmental Analytical Methods” and “Problem Solving and Programming”, the Tribunal is satisfied there are “special circumstances” for the purposes of s 36-20(1)(d) of the Higher Education Support Act 2003.
..........................[Sgnd]..............................................
Senior Member Dr N A Manetta
HIGHER EDUCATION SUPPORT – HECS-HELP debt – applicant unable to complete courses due to elbow condition and right hand injuries – applicant does not withdraw by census date - whether “special circumstances” exist – whether applicant’s circumstances made their full impact on or after the census date – whether circumstances are beyond the applicant’s control – whether circumstances make it impracticable to complete units of study – decision set aside and new decision substituted that “special circumstances” exist for the purposes of s 36-20(1)(d) of the Higher Education Support Act 2003 (Cth)
Legislation
Higher Education Support Act 2003 (Cth)
Cases
Montenegro v Secretary Department of Education [2020] FCAFC 210
Khan and Secretary, Department of Education [2019] AATA 3609
Secondary Materials
Higher Education Support Act - Administration Guidelines 2012
REASONS FOR DECISION
Senior Member Dr N A Manetta
13 September 2021
After delivery of my oral decision, I received a request for written reasons, which I now publish.
This is an application by Ms Kiri Sadouet seeking a review of the decision of the University of South Australia. The University refused Ms Sadouet’s application to it for, in effect, a remission of the debt she incurred to the Commonwealth in respect of her participation in two courses she undertook at the University of SA in 2017 and 2018 respectively.
Like other students, Ms Sadouet must pay fees in respect of university courses she undertakes (in the absence of a scholarship or other funding). Some domestic students choose to borrow money from the Commonwealth to assist in the funding of their participation in a course. The resulting debt must be repaid at a future date. Ms Sadouet was in this position.
Generally speaking, tertiary students who withdraw from a course on or before a nominated date, called a “census date”, receive a refund of the applicable course fee and no debt to the Commonwealth is incurred. Any withdrawal after the census date does not lead so easily to a refund of the course fee and a commensurate reduction in debt. A student must meet prescribed eligibility criteria.
The application before the Tribunal concerns Ms Sadouet’s enrolment in two courses offered by the University of SA as part of a Bachelor of Science degree. The two courses in question were taken in 2017 and 2018 respectively. I shall describe them in due course. In respect of each of these courses, Ms Sadouet failed to meet course requirements and did not withdraw by the census date. Both initially and on review, the University refused to recognise her circumstances as “special” as that concept is elaborated in the Higher Education Support Act, 2003 (“the Act”) and the Administration Guidelines, 2012 (“the Guidelines”). The existence of “special circumstances” is a prerequisite in Ms Sadouet’s case.
Ms Sadouet has brought an application to this Tribunal seeking a review of these adverse decisions. At the hearing before me, Ms Sadouet represented herself; Ms Cooke, the respondent. As I am giving my decision orally today, and also given the fact that Ms Sadouet is not legally trained, I shall express myself as plainly and concisely as possible.
TRIBUNAL’S TASK
Hearing the matter afresh on the evidence adduced before me, I must decide whether Ms Sadouet meets the criteria in the Act and Guidelines concerning “special circumstances”. I hear the matter de novo. This means that I may set aside the decision under review notwithstanding the absence of any discernible error in the reasons of the decision-makers if that is the correct or preferable decision on the evidence adduced before me; equally, I may affirm the decision under review notwithstanding the presence of an error in the reasons of the decision-makers if that is the correct or preferable decision on the evidence adduced before me. That is to say, I consider the matter entirely afresh and evaluate the evidence, draw inferences, and make findings for myself.
STATEMENT OF CONCLUSION
My conclusion in this matter is that I ought to set aside the decision under review and substitute a decision that the applicant has satisfied the Tribunal that there were “special circumstances” under section 36-20(1)(d) of the Act as read in conjunction with the Guidelines.
FINDINGS OF FACT
Before explaining my reasons, I set out my findings of fact including certain background facts.
Ms Sadouet was born in 1975 and was 45 at the time of the hearing before me. She completed her primary and secondary education in South Australia. She attempted her Year 12 certificate in 1992, but did not complete the academic year on account of certain medical conditions. She has had a varied work history, principally in hospitality and modelling. She began her working life in 1993 in hospitality, she said, and worked also for a year with Betts and Betts. As a matter of background, I note that she met her husband through hospitality and moved to France with him where she had a son. Their marriage ended in divorce, however, and it would also appear that Ms Sadouet suffered the extremely disturbing experience of having had her son kidnapped by her former husband. These facts are mentioned by way of background only: they do not bear on the issues I must decide.
In the years from 2004 onwards, and without detailing all the events, Ms Sadouet suffered car accidents which led to amongst other things to an injury to her right elbow. In particular, I understand that in 2012 there was a further injury in a car accident to the same elbow that was injured in 2004. From April 2004 onwards, which I understand is the date of the first car accident, Ms Sadouet has not worked, but has received social security benefits. There was, however, a period of three months’ work with a mining firm where she worked as a junior geologist examining data.
In the meantime, Ms Sadouet has sought to improve her educational qualifications. She attended Marden Senior College in 2009 and took Year 12 Geology in 2010. A TAFE course in the areas of geophysics and the geosciences followed, but she was unable to complete the course because of the motor vehicle accident she suffered in 2012.
In 2013, Ms Sadouet enrolled in a Bachelor of Science degree at the University of SA with an emphasis on subjects relevant to the mining industry. She enrolled in the degree with a number of disabilities. These related partly to her motor vehicle accident injuries, but they also related, as I understand Ms Sadouet’s evidence, to certain gynaecological conditions from which she suffered.
Ms Sadouet had a disability adviser at the University. A disability access plan was prepared for her: Ex R1, at 35ff. In respect of her academic progress, I note that Ms Sadouet has completed some subjects in the course with a distinction grade: see Ex R1, at 192. Ms Sadouet gave evidence, which I accept, that she enjoyed being at the University. The inference I would draw from her record is that, overall, Ms Sadouet has demonstrated that she is a capable student, at least in those areas of the program that suit her talents.
Ms Sadouet failed two courses that have become the subject of her application before this Tribunal. The first course is Environmental Analytical Methods (ENVT 1016), and it was undertaken in Study Period 5 of 2017. The second course is Problem Solving and Programming (COMP 1039), and it was undertaken in Study Period 2 of 2018.
Environmental Analytical Methods
Environmental Analytical Methods commenced on 17 July 2017 and the census date fell on 31 August 2017. There is no doubt that Ms Sadouet was suffering some considerable pain in her right elbow before the census date, and this was a continuing source of interference with her studies. She also had many medical certificates in the period from 17 July to 31 August attesting to her unwellness.
Ms Sadouet gave evidence, however, which I accept, that she felt she could manage the course notwithstanding the pain and the absences. In the event she pressed on after the census date.
She gave further evidence, which I also accept, that she attended an intensive course for approximately a week from 18 to 24 September 2017. The course was conducted as a practical field trip in the Flinders Ranges. Ms Sadouet gave evidence, which I accept, that despite being cautious, she aggravated her right-elbow condition on the field trip, and the condition produced more intense symptoms after the trip. She said she decided to carry on with Environmental Analytical Methods, having discussed the matter with a Ms Petit at the University, but eventually completing the course became too much for her. She ended up failing it.
I accept Ms Sadouet’s evidence, and find that she failed the course because she was unable to complete its requirements because of increased pain in her right elbow. Her underlying condition had been aggravated by the field trip to the Flinders Ranges in September 2017. I am mindful of the other health difficulties from which Ms Sadouet was suffering before the census date. My conclusion, however, is that the field trip was an important aggravating event and that it substantially affected Ms Sadouet’s capacity to complete the course requirements.
Problem Solving and Programming
Rather surprisingly, Ms Sadouet chose to enrol in another course, Problem Solving and Programming, in February 2018 despite her recent experiences in Environmental Analytical Methods. She said in her evidence to me that she thought she would be “OK” to undertake this course. This course, the second of the two courses before the Tribunal, commenced on 19 February 2018 and the census date was 31 March 2018.
After the census date, Ms Sadouet hit her right hand on a door frame on two separate occasions (see, for example, Ex R4, at 58, 84). Swelling and redness were observed around the middle finger of her right hand. The medical evidence suggests, however, that there was no underlying fracture: see Ex R4, at 225. Nevertheless, Ms Sadouet continued to report to her treating doctors ongoing pain in respect of her right hand despite the detection of serious abnormalities: see Ex R4, at 58ff. I accept as a fact that Ms Sadouet experienced significant pain in her hand as a result of the injuries she did to herself when she struck it against the door frame on two separate occasions. I find also as a fact that this pain was the cause of Ms Sadouet being unable to complete the course requirements for Problem Solving and Programming. As I have said, there are medical records showing that Ms Sadouet continued to consult doctors with ongoing pain, and these corroborate her evidence concerning the impact of the pain upon her.
LEGAL REGIME
The respondent has set out helpfully at paragraph [32] of its Statement of Facts Issues and Contentions (“SFIC”) (see Ex R3) the three conditions that must be satisfied by Ms Sadouet if she is to satisfy the “special circumstances” test under s 36-20(1)(d) of the Act. These three conditions, set out in s 36-21(1) of the Act, are to be read in conjunction with the Guidelines, reproduced at Ex R1, at 230ff.
I accept that I must pay careful attention to all requirements and address them separately: Montenegro v Secretary Department of Education [2020] FCAFC 210. I have done so. In the course of these oral reasons, however, it is sufficient if I summarise my conclusions.
I turn to apply the three conditions set out in s 36-21(1) of the Act to each of the courses. The first condition is that the circumstances were beyond the applicant’s control with respect to that course. This is to be read in conjunction with section [3.5] of the Guidelines. The respondent conceded that the right-elbow condition, considered as a condition, was beyond Ms Sadouet’s control and was unusual or abnormal. I think that concession is correct in respect of the first course I must consider.
I would also find that the aggravation of the condition which Ms Sadouet suffered as a result of the Flinders Ranges field trip was beyond her control. I accept Ms Sadouet’s evidence that she took precautions, but the field trip in September 2017 aggravated the condition and caused the condition to produce more intense symptoms. I accept Mr Sadouet’s evidence as given honestly and reasonably in this regard.
I find also that the full impact of the condition, as aggravated by the field trip, did not occur until after the census date: see s 36-21(1)(b) read with section [3.10] of the Guidelines.
I note that Ms Cooke referred me to Khan and Secretary, Department of Education [2019] AATA 3609. The respondent’s SFIC, at [36], contains an extract from the decision.
Even if I assume that Ms Sadouet’s right elbow pain, apart from the aggravation she suffered in the Flinders Ranges, was largely predictable and that she had learned to live with the “flare-ups”, to adopt the phrase used in Khan, the Flinders Ranges trip involved a further unanticipated aggravation of the condition and increased its painfulness beyond usual levels. That is a distinguishing factor.
In these circumstances, I would find that the aggravated elbow condition (i.e., as aggravated on the Flinders Ranges trip) was beyond Ms Sadouet’s control and did not make its full impact until after the census date.
The third condition in s 36-21(1)(c) (to be read with section [3.15] of the Guidelines) is that the circumstances made it impracticable to complete the course requirements. I find as a matter of fact that Ms Sadouet was unable to complete the requirements of this course because of the increased pain she was experiencing.
In this regard I would note that the perception of pain can differ markedly from one person to another. Some manage pain better than others. I accept Ms Sadouet’s evidence that her experience of elbow pain was so intense that she could not complete the course, and in particular the examination component. The pain she experienced had made it impracticable for her to complete the requirements of the course in my opinion. I would note that there were other difficulties in Ms Sadouet’s life and health that did not help matters and impeded her studies; but the pain from her elbow was decisive in my opinion. But for the pain in her elbow she would have been able to complete the course in my opinion.
So far as the second course is concerned, I find that the elbow pain was, by the census date, a condition that, in its aggravated state, was known to Ms Sadouet. She chose to enrol in the second course with an enhanced disability, so to speak. Its impact was known to her at the time of her enrolment.
However, Ms Sadouet gave evidence, which I accept, of having struck her hand twice against a door frame after the census date. She suffered disabling pain in her hand. I accept her evidence. I accept that her experience of pain may be unusual given the absence of any underlying fracture. But there is no doubt she struck her hand on the frame twice, and there is no doubt these impacts caused a swelling above the right middle finger, nor is there any doubt that she consulted doctors regularly about the pain she was experiencing: see Ex R4 at pp 58ff. I am satisfied that this pain on its own (that is apart from other pain and discomfort she was experiencing from other conditions) caused a substantial and ongoing disablement even though the intensity of the ongoing pain may have been an unusual consequence of the two events. These events caused Ms Sadouet to be unable to complete the requirements of her course in my opinion.
Ms Cooke pressed me with a submission that I should be slow to draw a conclusion that Ms Sadouet was unable to complete the two courses on account of her elbow and hand pain, respectively, because she completed other courses contemporaneously at a high level: see Ex R1 at 192.
In this regard, I note that Ms Sadouet completed a subject called “Geolab” at Distinction level in the same study period as she was undertaking Environmental Analytical Methods. But Ms Sadouet made the valid point in her submissions to me that Geolab was taught intensively over a limited number of discrete weeks in this study period (see Ex R1 at 140) and that she found she was able to complete Geolab successfully. I accept that evidence.
So far as the second failed course is concerned, namely, Problem Solving and Programming, Ms Sadouet contemporaneously completed Geospatial Data Acquisition and Analysis at Distinction level. But the assessment methods were not identical, and in particular Geospatial Data Acquisition and Analysis did not have an examination component.
So far as Ms Cooke’s submission is concerned, I would note that it will sometimes be appropriate to reason that if a student successfully completes one course in a study period, a failure in another course undertaken in the same study period was not due to any medical condition. But in circumstances where the prescribed assessments are different in type and conducted on different days, where some subjects may be found by a student to be more demanding than others (reflecting his or her own aptitudes), and where there are different stressors in subjects, one should be careful about drawing such an inference too readily. It may also be the case that a student will pass one subject− even very well− but fail another in the same study period due to a medical condition. In Ms Sadouet’s case I do not believe it is appropriate to draw an inference that Ms Sadouet’s success in Geospatial Data Acquisition and Analysis meant that the pain in her hand was not substantial or debilitating for her, and I draw this conclusion notwithstanding her very high achievement in this subject. As I have noted, the medical records show that Ms Sadouet regularly consulted specialists over ongoing pain in her right hand. Again, I note that the impact and perception of pain can differ markedly among individuals.
SUMMARY
All in all, therefore, and by way of summary, I find that, very unfortunately, Ms Sadouet suffered an aggravation of a serious elbow condition after the first census date and two injuries to her right hand after the second census date. These injuries caused her debilitating pain that impeded substantially her completion of the courses in question, and so much so that completing them became impracticable for her.
FORMAL DECISION
I shall set aside the decision under review and substitute a decision that Ms Sadouet has satisfied the Tribunal that in respect of each course there were “special circumstances” for the purposes of s 36-20(1)(d) of the Act.
I certify that the preceding thirty-none (39) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta.
..............[Sgnd]....................
Administrative Assistant LegalDated: 13 September 2021
Date of hearing: 2 June & 7 July 2021 Advocate for the Applicant: Self-represented Advocate for the Respondent: Katherine Cooke, HWL Ebsworth Lawyers
0
2
0