Sebbaha and Secretary, Department of Education, Skills and Employment

[2021] AATA 3518

Sebbaha and Secretary, Department of Education, Skills and Employment [2021] AATA 3518 (1 October 2021)

Division:General Division

File Number:          2020/0498

Re:Maryam Sebbaha

APPLICANT

AndSecretary, Department of Education, Skills and Employment

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:  1 October 2021

Place:Melbourne

The Tribunal affirms the decision under review.

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

Dr Stewart Fenwick, Senior Member

Catchwords

EDUCATION – HECS-HELP – debt remission – whether special circumstances apply – medical condition preventing attendance – full impact not on or after census date – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975

Higher Education Support Act 2003

Secondary Materials

Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education, Administration Guidelines 2012 (16 September 2013)

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

1 October 2021

BACKGROUND

1. Ms Sebbaha applied to the Tribunal on 24 January 2020 for review of a decision by the La Trobe University student administration to uphold an earlier decision not to remit a debt for studies undertaken in Semester 1, 2018.

2. Ms Sebbaha was undertaking units in a Bachelor of Biomedicine degree and enrolled in three units in the first semester of 2018. The unit in issue in this matter is Human Anatomy which had a study period of 11 March 2018 to 28 June 2018 and a census date of 31 March 2018. Ms Sebbaha passed the two other units in that semester but failed the anatomy subject.

3. A long-standing condition of dysmenorrhea, causing severe pain during menstrual periods, prevented Ms Sebbaha from attending campus and was generally disabling and interfering with her studies and assessments. Attendance at ‘wet labs’ were an important element of the anatomy unit given that they involved cadaver-based practical sessions.

4. Ms Sebbaha lodged a Statement of Facts, Issues and Contentions (SFIC). During the hearing the Applicant also produced two reports of her gynaecologist, Dr Deepali Dhillon, dated 9 April 2018 and 3 August 2018 (Exhibit A1), with an objection to late provision of material noted from the Respondent’s representative. A range of material produced by Ms Sebbaha was reproduced in material lodged by the Respondent.

5. The Respondent lodged a SFIC, documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) and Supplementary T documents (ST documents), the latter incorporating the Applicant’s further materials.

6. The Applicant appeared by telephone at the hearing and evidence was given by her General Practitioner, Dr Justin Scarlett.

   LEGISLATION

7. The Higher Education Support Act 2003 (the Act) governs the provision of financial support to students and the repayment of a person’s contributions, or remission of a HECS-HELP debt in respect of a unit of study in certain circumstances.

8. Under s 36-20 of the Act, where a person has not completed a unit of study they may, as in this matter, apply for remission of a debt which must be granted where the provider is satisfied that special circumstances apply to the person.

9. ‘Special circumstances’ are defined as applying to a person under s 36-21(1) if, and only if, they:

   (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.

10. The Administration Guidelines 2012 (the Guidelines) have been made under s 238-10 of the Act. A decision made in respect of special circumstances must, under s 36-21(2) of the Act, be made in accordance with the Guidelines.

11. Chapter 3 of the Guidelines addresses the circumstances in which a higher education provider is to be satisfied as to the existence of special circumstances.

12. Paragraph 3.5.1 of the Guidelines provides that circumstances are beyond a 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’. Paragraph 3.5.5 provides that the situation must be ‘unusual, uncommon, or abnormal’.

13. Paragraph 3.10.1 of the Guidelines provides as follows:

    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 or 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.

14. With respect to the impracticability of completing the requirements of the unit, paragraph 3.15.1 of the Guidelines provides (relevantly) that medical circumstances are one of several circumstances that may meet this condition. The example is provided of a condition that has changed to the extent that it prevents a person continuing their studies. Further, this paragraph defines inability to complete the requirements of a unit as inability to undertake study or attend lectures or tutorials, complete required assessable work, sit examinations or complete any other requirements.

    ISSUES

15. The issue for determination is whether special circumstances apply to Ms Sebbaha’s situation. The conditions established in s 36-20(1) of the Act are cumulative, and I must be satisfied that all are met in order to find in the Applicant’s favour.

    CONSIDERATION

    Circumstances

16. The first issue to be addressed is whether special circumstances apply which were beyond Ms Sebbaha’s control.

17. There is no dispute in this matter that Ms Sebbaha’s circumstances revolve around a medical condition that is described by Dr Scarlett as chronic, and that was diagnosed over seven years ago (ST10, p 218). Ms Sebbaha herself acknowledged at the hearing that the condition was one of long-standing, but that also fluctuated and was intermittent in its effect.

18. The Respondent’s submissions are framed around a very wide interpretation of Ms Sebbaha’s circumstances (see Respondent’s SFIC at [29]). Thus, her circumstances are said to encompass 47 separate incidents or events, essentially embracing the history of the Applicant’s studies and the claim leading up to this application.

19. The Respondent contends that the inquiry into the circumstances includes consideration of whether it was beyond Ms Sebbaha’s control to be unable to withdraw from the unit before the census date (Respondent’s SFIC at [32] and [45]). This approach is said to be consistent with previous Tribunal decisions, and I have noted this approach in other decided matters.

20. It seems unnecessary to read into the scheme consideration of whether a person’s circumstances prevented them from withdrawing. Furthermore, s 36-21 of the Act refers specifically to the circumstances in question being such that they make completion of the unit impracticable. Accordingly, I will confine my consideration here to the medical condition itself.

21. The Guidelines address the person’s level of responsibility in relation to the circumstances, and require that the situation must be unusual, uncommon or abnormal. The Respondent contends (Respondent’s SFIC at [39] and [45]) that these qualifying words, in a case of an established but fluctuating condition, should be read in the context of the overall history of the condition, citing several Tribunal decisions that have taken this approach.

22. A report of Dr Scarlett dated 22 January 2021 (ST9, p 199) describes Ms Sebbaha’s condition as having ‘flared up during the study period for Semester 1, 2018 between 11^th March 2018 to 3^rd June 2018 …’. It is described as a condition that fluctuates and was at a worse state compared to her normal medical state.

23. Dr Scarlett confirmed in his evidence at the hearing that Ms Sebbaha’s condition had been chronic since 2013 and that he first treated her in 2016. Asked about the path the condition had taken between 2016–2018, he replied that it ‘comes and goes’ and can be incapacitating. Symptoms can last for one to two weeks and then remit, but return ‘time and time again’.

24. Ms Sebbaha in her evidence stated that she was diagnosed with the condition several years ago and agreed that her symptoms can affect her for up to a week per month. She stated that in the last few years her condition had become exacerbated every few weeks. In an individual month, Ms Sebbaha said her symptoms can extend for three to five days, but it was difficult to predict.

25. Ms Sebbaha was asked about aspects of her studies including passing assessments in other units she was undertaking. She stated that she missed most classes, but physical presence was not always required as certain assessment could be completed online.

26. Ms Sebbaha stated that Human Anatomy required attendance at ‘wet labs’ to deal with cadavers and anatomy specimens. I asked her whether she was aware of the course requirements, and she replied: ‘not really’. Later in her evidence Ms Sebbaha stated that this course included attendance at labs, and four tests totalling 40% of the assessment.

27. In his evidence at the hearing, Dr Scarlett stated that Ms Sebbaha consulted him on 15 March 2018, and again on 23 March 2018 in relation to her condition. He provided a medical certificate for her on the latter occasion. Dr Scarlett stated that Ms Sebbaha attended for consultations five to six times during March and April 2018. She also consulted another female practitioner during the same period.

28. On further questioning, Dr Scarlett stated that he saw Ms Sebbaha earlier in March 2018 and referred her to a gynaecologist. He agreed that this history was consistent with his later description of her condition as ‘flaring up’ in March.

29. I note the report of Dr Dhillon dated 9 April 2018 (Exhibit A1) states that Ms Sebbaha changed her contraceptive medication on 2 March 2018, having experienced nausea with a previous brand. She developed concerns about the nature of her period and was on medication because of her dysmenorrhea. The report describes the findings of an ultrasound conducted on 7 March 2018 (which appears to have been normal). The report recommends further treatment options in order to explore a diagnosis of endometriosis.

30. The above report was admitted at the hearing, providing no advance notice to the Respondent. However, in the context of a hearing where the Respondent was in a position to cross-examine Ms Sebbaha’s general practitioner, and had access to a range of specific consultation notes, I do not consider that any particular prejudice arises from this material. Indeed, the consultation notes mention this particular referral (suggesting a limited element of surprise to the Respondent).

31. On the basis of this evidence above, I accept that Ms Sebbaha was indeed undergoing a ‘flare up’ of her condition. I am therefore satisfied that Ms Sebbaha did experience a situation that was not only out of her control, but also one that was of a sufficiently unusual nature, even in the context of her personal history, to satisfy the Guidelines.

    Impact

32. The next consideration is whether the situation made its full impact on or after the census date, which is 31 March 2018.

33. I have set out above a relatively detailed summary of the state of Ms Sebbaha’s medical condition in March 2018. Some further records are relevant to the issue of impact and timing.

34. In particular, the Respondent has placed some emphasis in its SFIC on Ms Sebbaha’s own description of her situation. On 27 March 2018, Ms Sebbaha emailed her subject coordinator (ST8, p 192), referencing an earlier email on the same issue, advising that she had missed a tutorial due to her medical condition having ‘become severe’. She states that the condition also affected her ability to complete an assessment activity. Medical certificates were attached to this email stating her unfitness to attend university on 19 and 20 March, and also 26 and 27 March.

35. The email also states that Ms Sebbaha was seeking the assistance of disability support services with respect to her studies. Subsequently on 19 April 2018, a Learning Access Plan (ST11, p 221) was issued which describes the impact of ongoing fatigue and ‘periods of severe incapacitation to the point of being bedridden for 3–4 days at a time’. This is said to affect her attendance and capacity to complete assessments and meet submission deadlines.

36. I note there are records of other medical consultations in April and May, which have been identified in the summary of oral evidence at the hearing. These consultations relate to ongoing treatment for Ms Sebbaha’s condition, but do not reveal a departure from the pattern of the situation as I have described it in the previous section.

37. I also note Medical Impact Statements were submitted by Ms Sebbaha. A statement of 26 June 2018 (T10) refers to ‘total incapacitation’ between 12 June 2018 and 26 June 2018. A statement of 8 February 2019 (ST1, p 97) purports to cover medical consultations between 17 April 2018 and 8 February 2019. It goes on to record ‘total incapacitation’ for this same period with the annotation ‘or (intermittent)’ and describes the impact as severe in terms of impact on assessment.

38. As with the notes of medical consultations, I do not consider the additional medical records demonstrate that Ms Sebbaha’s condition worsened in a material way during April, May or June. As noted in the previous section, the specialist medical report demonstrates to my satisfaction that Ms Sebbaha had entered an identifiably different phase of her condition in March 2018. She was consulting a specialist in respect of the impact of her medication, and went on to describe the impact of this situation herself as severe.

39. To put this in terms of the Guidelines, I am not satisfied that the situation worsened after the census date, nor that the full force became apparent until on or after the date.

40. Accordingly, I am satisfied that Ms Sebbaha’s medical situation should be considered as having made its full impact on or before the census date.

    CONCLUSION

41. Given the findings I have made, it is not necessary to continue to address the third part of the cumulative conditions set out in s 36-21 of the Act.

42. While I am satisfied that Ms Sebbaha experienced a situation beyond her control, I do not consider that its impact was on or after the census date.

    DECISION

43. For the reasons given above the Tribunal affirms the decision under review.

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

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

Associate

Dated: 1 October 2021 

Date of hearing:	16 August 2021
Applicant:	By telephone
Advocate for the Respondent:	Mr Michael Palfrey
Solicitors for the Respondent:	HWL Ebsworth