Taylor and Department of Education, Training and Youth Affairs
[2000] AATA 566
•10 July 2000
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2000] AATA 566
ADMINISTRATIVE APPEALS TRIBUNAL )
) No NI999/1654
GENERAL ADMINISTRATIVE DIVISION )
ReGRANT HARRIS TAYLOR
Applicant
AndSECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO RAN (Rtd), Member
Date 10 July 2000
Place Sydney
Decision The decision under review is affirmed
. .............................................
A R Horton
Member
CATCHWORDS
EDUCATION - Higher Education Contribution Scheme - withdrawal from course - whether debt should be waived due to special circumstances - Guidelines issued by Secretary pursuant to Act
Higher Education Funding Act 1988 - ss 106L, 106M, 106MA
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Beadle v Director-General of Social Security (1985) 60 ALR 225
Re Moran and Department of Employment, Education and Training (1990) 13 AAR 7
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Cook and Secretary, Department of Education, Training and Youth Affairs [1999] AATA 747
REASONS FOR DECISION
A R Horton, Member
This is an application by Mr Grant Taylor ('the Applicant') for review of a decision not to remit a Higher Education Contribution Scheme ('HECS') debt, notified to him by letter dated 19 August 1999 from a delegate of the Secretary, Department of Education, Training and Youth Affairs ('the Respondent'). This decision was reviewed by a different delegate, and affirmed, as advised to the Applicant by letter on 30 September 1999. The Applicant lodged an application for review by the Administrative Appeals Tribunal ('the Tribunal') on 25 October 1999.
At the hearing before the Tribunal on 28 June 2000, the applicant was self -
Represented. Ms J Maurer, solicitor, represented the Respondent. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ('the T documents'). The Tribunal also received into evidence a letter with attachments from the NSW Police Service (Education Services) dated 24 February 2000 (Exhibit A1) and a further letter to the Applicant from the Respondent dated 6 March 2000 (Exhibit R1). This later letter advised that a further consideration of the matter by a delegate of the Secretary had been undertaken in the light of additional information provided to the Tribunal, but the decision remained not to remit the debt.
ISSUES BEFORE THE TRIBUNAL
The issues in this matter, as agreed by the parties, are:
(a) Whether the Applicant's circumstances amount to 'special circumstances' under section 106L(3) of the Higher Education Funding Act 1988 ('the Act'); and
(b) Should that be agreed, whether the HECS semester debt incurred by the applicant in the first semester of 1999 should be remitted in whole or in part under section 106L(1) of the Act.
FACTS AND EVIDENCE
The Applicant enrolled in the Master in Public Policy and Administration degree at Charles Sturt University in March 1999. He withdrew by telephone from this degree in April 1999 on becoming aware that his employer, the NSW Police Service, had made a decision not to make available new scholarships in 1999 under the Police Service Tertiary Scholarship Scheme (Police Service Weekly (PSW) dated 19 April 1999 and attached at Exhibit A1). In June 1999, he received second (spring) semester material from the university, thus becoming aware that his withdrawal from the first (autumn) semester had not been effected. In July 1999, he received his taxation assessment for 1998/1999, which indicated that he had incurred a HECS tax liability of some $1300 in respect of the first semester.
In evidence, the Applicant confirmed that he had first enrolled at Charles Sturt University in 1994. He undertook, and passed, an Associate Diploma of Policing by correspondence. The HECS liability for each semester of this course was covered under the Tertiary Scholarship Scheme, he having applied for such assistance in manuscript form, and having received formal approval. He stated that under the conditions of the approval, he was required to pay the HECS fees 'up-front', on the basis that these fees were refunded by his employers on successful completion of the course (or each stage of the course). In evidence, he stated that he had met this requirement.
He subsequently commenced a Bachelor of Policing (Investigations) degree
in 1997, again by correspondence. On this occasion the matter of scholarship support did not arise as the course was HECS-free as far as the individual student was concerned. Thus in the case of both courses at Charles Sturt University, he considered 'HECS had never been an issue', although he acknowledged that he had received the booklet 'HECS - Your Questions Answered' on numerous times during his course of studies prior to 1999.
The Applicant gave evidence that whilst he completed the Bachelor degree course in late 1998, his results did not become available until February 1999, and it was not until that happened that he gave thought to his next course. He sought advice from the responsible person at the Police Academy Goulburn, Ms Baxter, in regard to the availability of a scholarship, and she 'continually informed' him that there had been no decision by the Police Service as to the availability of scholarships in 1999. He did not formally apply for a scholarship, nor apparently was any advice provided him indicating any approval for such a scholarship. The Tribunal notes that the Commissioner's Circular 95/74 (attached at Exhibit A1) refers to changes to the Tertiary Scholarship Scheme, and requires applications for such scholarships for 1996 to be lodged by late October 1995. A further attachment from the Police Service Weekly (PSW) notes that applications for approval for 1998 were to be lodged by late December 1997. When asked by the Tribunal why he had not submitted a formal application in a similar timescale seeking scholarship support for his proposed course(s) in 1999, the Applicant responded that he was unable to do so, as he had not received confirmation that he had passed his Bachelor degree and such confirmation was an integral part of an application for support for a post graduate degree.
In the event, as given in evidence, the Applicant received advice from the university that a place on the proposed post-graduate course was available, and he applied to the university through the Police Academy in early March 1999 for the course and relevant units of study for that year. Whilst he knew there was as yet no decision on 1999 scholarships, and had not formally applied for such assistance, he commenced the course in the belief that such support would be forthcoming.
In cross-examination, the Respondent suggested that the Applicant should have been well aware that the matter of any scholarship support was in doubt prior to his enrolment, given discussions with Ms Baxter of the Police Academy and given that two PSW notices (of 14 November 1996 and 8 December 1997) advised that the Tertiary Scholarship Scheme was under review. The latter particularly stated (as emphasised in Exhibit A1) that 'Any financial commitment to tertiary studies should be made with the knowledge that the future level of funding for the scheme is under review. Decisions regarding enrolments or re-enrolments should be made on that basis'. The Applicant responded that he may not have read such notices at the time, and if he had, he had not remembered them in 1999. He emphasised the cultural imperatives within the Police Service where, in his view, higher education relevant to the Police Service was almost essential for promotion and, in his case, he had previously been supported by the service and had successfully completed two educational qualifications. Hence, he anticipated a continuing Police Service support.
The Applicant confirmed to the Tribunal that he had signed the HECS Payment Options Declaration form provided by the university. He could not recall what, if any, sections he had completed. Upon reading PSW Vol 11 No 15, dated 19 April 1999 (attached at Exhibit A1), he found out that the Tertiary Scholarship Scheme remained under review, and that the scheme 'remained closed to fresh applications', that is, he was not in receipt of any assistance from that scheme, nor would any assistance be forthcoming. He stated that he advised the university of his withdrawal by telephone, but did not confirm such advice in writing, as required by the conditions for HECS, which are detailed in the HECS Booklet.
The Applicant stated in evidence that he was not aware of the census date of 31 March, as recorded in the 'HECS – Your Questions Answered' booklet, nor of the implications of the census date, by which time withdrawal from first semester courses had to be actioned in order to avoid the payment of HECS fees for that semester. As stated in paragraph 4 above, he became aware that his withdrawal had not been effected when he firstly received study material for the spring semester in June, and that he had incurred a HECS liability when he received advice from the Australian Taxation Office the following month. On 9 August 1999, the Applicant lodged an Application for Remission of HECS debt in Special Circumstances with the Respondent.
ANALYSIS OF EVIDENCE AND FINDINGS
In considering the matter, the Tribunal notes that the Applicant did not withdraw from the course prior to the 31 March 1999 census date, and therefore a HECS debt was incurred for that particular semester. The Applicant did withdraw from spring semester courses prior to the census date of 31 August 1999 and hence there is no HECS liability for that semester. The Applicant seeks that the Secretary of the Department of Education, Training and Youth Affairs remit the incurred debt for the first semester in whole.
The relevant legislation is that in section 106L of the Act, which relevantly
states:
(1) The Secretary may, in writing, remit the whole or part of a person's HEC semester debt if:
(a)the person has not completed the course requirements for his or her course of study in respect of a semester during the semester or during the year in which the semester occurred; and
(b)the Secretary is satisfied that special circumstances apply to the person
(see subsection (3)); and
(c)the person applies in writing to the Secretary for remission of the debt
within 12 months after the person's withdrawal day in relation to a unit in
the person's course of study for the semester (see subsection (3B)).
…
(3) For the purpose of this section, "special circumstances", in relation to a person,
include circumstances that the Secretary is satisfied.,
(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 course of study for the semester or the study period (as the case requires); and
(c)make it impracticable for the person to complete the course requirements for the course of study for the semester during the semester or during the year in which the semester occurs, or the units of study for which he or she was enrolled for the study period (as the case requires).
…
(3B)For the purposes of this section, a person's "withdrawal day", in relation to a unit in a course of study for a semester, or a unit of study for a study period, is:
…
(b): if.-
(i)the person has incurred an HEC semester debt for the course of
study for the semester; and
(ii) paragraph (a) does not apply to the person; and
(ii)the person does not complete the course requirements for the
course of study for the semester during the semester or during the year in which the semester occurred;
the last day of the semester.
Section 106L(1) of the Act defines the criteria under which the Secretary may
consider the remittance in whole, or in part, of HEC semester debt. The Applicant meets the requirements of subsections 106L(1)(a) and 106L(1)(c) of the Act, in that he respectively did not complete the course requirement for his course of study in the relevant (autumn) semester, and that he applied in writing for remission of the debt within the legislated period of 12 months. The issue hinges, therefore, on whether the Applicant satisfies subsection 106L(1)(b) in regard to whether special circumstances applied.
For the purpose of this consideration, special circumstances is further addressed
in the Secretary's (Department of Education, Training and Youth Affairs) Guidelines for Special Circumstance for Remission of HECS/OLDPS Debt for Units of Study commenced on or after 1 January 1998 (Secretary's guidelines):
Each application will be examined and determined on its merits. The secretary will consider the person's claims together with independent documentary evidence which substantiates these claims. The secretary may be satisfied that a person's circumstances:
(a)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. This situation must be unusual, uncommon or abnormal. A lack of knowledge or understanding of HECS or OLDPS is not considered to be beyond a person's control.
(b)do not make their full impact on the person until on or after the census date for the course of study for the semester or the study period (as the case requires) if the person's circumstances occur:
(i)before the census date, but worsen after that day; or
(ii)before the census date, but the full effect or magnitude does not become apparent until on or after that day, or
(iii) on or after the census date.
(c)make it impracticable for the person to complete the course requirements for the course of study for the semester during the semester or during the year in which the semester occurs or the units of study for which he or she is enrolled for the study period (as the case requires if the person is unable to:
(i)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
(ii)complete the required assessable work, or
(iii)sit the required examinations, or
(iv)complete any other course requirements because of their inability to meet (i), (ii) or (iii)
Special circumstances might arise from medical, family, personal, employment or course related reasons. In considering a person's application, the Secretary must be satisfied that the person has met the criteria outlined above in (a), (b) and (c).
17. The Respondent submitted that Beadle v Director-General of Social Security (1985) 60 ALR 225 is relevant to this matter, in that the decision by the Full Federal Court (Bowen CJ, Fisher and Lockhart JJ) considered the meaning of 'special circumstances' (in the context of subsection 102(1)(a) of the Social Security Act 1947), the definition placed on the phrase in that context being equally relevant in terms of its use in the Act applicable to this matter. Their Honours considered that the circumstances of a particular case would be relevant in deciding whether 'special circumstances' existed, but went on to say that the phrase, 'although lacking precision, is sufficiently understood in our view not to require judicial gloss' (at 228).
The Full Court upheld an appeal from an earlier decision of the Administrative Appeals Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1. That 3 member Tribunal, presided by Toohey J, saw the phrase 'special circumstances' as follows:
An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. That is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
In the context of the matter under consideration in Re Beadle (supra), which related to the payment of a handicapped child's allowance, that Tribunal also made the observation that 'the financial position of the applicant will not ordinarily constitute special circumstances in itself'.
In the more recent decision of the Federal Court in Boscolo v Secretary,Department of Social Security (1999) 90 FCR 531, which related to a claim for the payment of aged pension at the single rate, the Appellant filed an appeal which in part claimed that the Tribunal 'wrongly applied the Law to the facts as found by it in particular by characterising the relevant facts as not being so out of the ordinary and exceptional that they constitute a special reason' (at 535). French J saw 'the word "special" as conditioning "reasons" or "circumstances"' (as applicable in this matter pursuant to section 106L of the Act) and providing a direction to the decision maker that the discretion 'is not lightly to he enlivened (at 535)'. The Respondent also drew the attention of the Tribunal to Re Cook and Secretary, Department of Education, Training and Youth Affairs [1999] AATA 747 where, in somewhat similar circumstances to this issue, the Tribunal reached a conclusion that the particular circumstances did not constitute 'special' circumstances.
The provisions of section 106L(3) are cumulative in that all three sections must be met. The Applicant concedes that this section is relevant to his application for review. In considering the merits of the case, the Tribunal takes account of the Applicant's submission regarding the culture of the police force and the emphasis being placed on education. Indeed, the Commissioner's Circular 95/74 previously referred to, notes that the aim of the Tertiary Scholarship Scheme is to provide financial assistance 'with the aim of raising the overall level of education within the Police Service'. To that end, the service had funded the Applicant by scholarship for his Diploma of Policing and had approved his undertaking the HECS free Bachelor of Policing (Investigations) degree. Thus, the tribunal accepts that the Applicant had been well supported by the Police Service and had achieved good academic results. It seems reasonable that the Applicant should have an expectation of further financial support.
However, the Applicant bore the responsibility of implementing proper procedures in terms of seeking approval for further scholarship support. Not withstanding his comment that 'HECS had never been an issue', the Tribunal is of the opinion that the Applicant was generally aware of the ramifications of HECS, and had a responsibility to familiarise himself with the liabilities that might be incurred should a scholarship not be forthcoming. Such a warning was contained in PWC dated 8 December 1997, issued at a time when the Applicant was undertaking undergraduate studies. At the time of enrolment for the course that is the subject of this matter, the Applicant had made no formal application for a scholarship under the Tertiary Scholarship Scheme, although he had done so in the past and had been informed that the system was under review. The fact that he processed his enrolment through the Police Academy does not remove his responsibility to make the proper application for a scholarship and to know whether or not such an application was approved before undertaking the course.
In that environment, the Applicant signed the HECS Payment Options Declaration Form without studying the implications, thereby exposing himself to a HECS debt should he not withdraw before the census date. From his evidence, he was not aware of the census date nor the implications, even though he had received copies of the HECS booklet. His subsequent withdrawal from the course by telephone again showed an ignorance of the procedures, but this became somewhat irrelevant as it occurred after the census date, by which time the HECS debt was being brought to account.
On the evidence, the Tribunal concludes that there is no evidence to support
a finding that the events were beyond the Applicant's control. He enrolled for a course of study in anticipation of financial support from his employer, without having applied for such support and without taking the necessary steps to monitor the implications of his enrolment. Taking account of the Secretary's Guidelines, and noting in particular that 'a lack of knowledge or understanding of HECS…….is not considered to be beyond a person's control', the Tribunal concludes that the circumstances of subsection 106L(3)(a) are not satisfied.
Subsection 106L(3)(b) requires the Secretary to be satisfied, taking into account the Guidelines, that the circumstances of this matter did not make their full impact until after the census date. There is no doubt that the Applicant did not appreciate the implications of his decision to enroll until after this date, but this matter is on all fours with Re Cook (supra) to the extent that 'the constructs of the decision were with the Applicant prior to the census date, with time and time alone allowing the Applicant to finalise a decision', after carefully weighing the significance and consequences of such a decision (at para 22). The decision by the Police Service not to fund fresh applications was not promulgated until 19 April 1999, that is after enrolment dates and the census date, was a reflection of poor administration. But, in the opinion of the Tribunal, the Applicant cannot benefit by this issue as he was fully aware that he had no scholarship approval at the time of enrolment and took no steps to further ascertain his position prior to the census date. The tribunal, therefore, must conclude that the requirements of subsection 106L(3)(b) are not met.
As regards the final condition of subsection 106L(3)(c) the Applicant concedes that, had he appreciated that he had incurred a HECS debt, he would have continued with the first semester course. However, given that as of 19 April 1999 he appreciated that scholarship support would not be forthcoming, he took steps to withdraw from the course. There is no suggestion that it was impracticable for him to continue the course. He did not do so, primarily because he had not made himself familiar with the requirements of the HECS. Accordingly, the Tribunal finds that the requirements of subsection 106L(3)(c) are not met.
The Tribunal must conclude that in all the circumstances, the Applicant does not meet the special circumstance requirements of section 106L(3). The facts of the matter do not support a contention that the circumstances are unusual, uncommon or exceptional: Re Beadle (supra). The financial implications to the Applicant are recognized, but in the light of the finding on section 106L(3), this is not seen to constitute special circumstances in itself: Re Beadle (supra).
The Tribunal, therefore, finds that the requirements of section 106L(1) are not met as the 'special circumstances' required under subsection 106L(1)(b) are not satisfied. Hence the Tribunal finds against the remittance of the Applicant's HECS debt.
The Tribunal affirms the decision under review.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of A R Horton
Signed: .....................................................................................
AssociateDate of Hearing 20 March 2000
Date of Decision 10 July 2000
Representative for the Applicant Self Represented
Representative for the Respondent Ms J Maurer
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