Taylor (FKA Matthew Earle) and Secretary, Department of Education, Science and Training

[2005] AATA 314

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 314

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/347

GENERAL ADMINISTRATIVE DIVISION		)
Re		SCOT TAYLOR (FKA MATTHEW EARLE)

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING

Respondent

DECISION

Tribunal Senior Member L Hastwell

Date8 April 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

(Signed)

L HASTWELL
  (Senior Member)

CATCHWORDS

EDUCATION – Higher Education Contribution Scheme (HECS) – remission of debt – special circumstances – decision affirmed

Higher Education Funding Act 1988 SS 106j, 106l

REASONS FOR DECISION

8 April 2005   Senior Member L Hastwell

1. This is an application for a review of a decision of a delegate of the Department of Education, Science and Training (the Department) upon reconsideration dated 13 October 2004 refusing to remit a debt owed to the Commonwealth by the applicant under the Higher Education Contribution Scheme (HECS), pursuant to s 106L of the Higher Education Funding Act 1988 (the Act).

2.      The applicant applied to the Tribunal for review of that decision.

issues for determination

3.      The issues to be determined by the Tribunal are:

·Whether the applicant has incurred a debt for the purposes of s 106J of the Act?

·Whether special circumstances exist to enable remission of all or part of the debt, pursuant to s 106L of the Act, as read in combination with Guidelines issued by the Secretary, pursuant to s 106L(3A) of the Act?

legislation

4. The relevant sections of legislation are contained in ss 106J and 106L of the Act. The Secretary has also issued Guidelines pursuant to s 106L(3A) of the Act for the purposes of decisions under s 106J(1) and (2) of the Act.

5.      Section 106J of the Act provides:

“(1)      When the Commonwealth under section 57:

(a)makes a loan to a person; and

(b) uses the amount lent to make a payment in discharge of the person's liability to pay a contribution in respect of a course of study in respect of a semester;

the person incurs an HEC semester debt to the Commonwealth equal to the amount of the loan.

(2)The HEC semester debt is taken to have been incurred immediately after the census date in respect of the course of study in respect of the semester, whether or not the Commonwealth has made a payment to the institution in respect of the contribution.”

6. Section 106L of the Act provides:

“(1)The Secretary may, in writing, remit the whole or part of a person's HEC semester debt or PELS 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 purposes 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).

(3A)The Secretary may issue guidelines relating to circumstances in which the Secretary will be satisfied of a matter referred to in paragraph (3)(a), (b) or (c). A decision of the Secretary under subsection (1) or (2) must be in accordance with any such guidelines.

…”

7.      The Secretary’s Guidelines for special circumstances for remission of HECS/OLDPS debt of units of study commenced on or after 1 January 1998 read, in part:

“…

3.        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 will 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  was 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 assessment work, or

iii.sit the required exams, 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.”

background and discussion

8.      The applicant appeared by telephone and gave evidence on his own behalf.  The Department was represented by Ms Nguyen.  The Tribunal adjourned the matter at the conclusion of the hearing to enable some further documents to be put before the Tribunal.  The medical records for the applicant from the Kingston Family Clinic were obtained and produced on the adjourned date, and were marked Exhibit A2.  The medical records for the applicant from the Flinders Medical Centre were produced and were marked Exhibit A3. 

9.      The applicant had changed his name by deed poll to Scot Taylor between the date of his application for review and the date of hearing.  He acknowledged that he was the person named Matthew Earle who was the applicant for review, and was the student enrolled at Flinders University to study the subjects: Computing 1, English 1, Maths 1, and Psychology 1 in the first semester 2004. 

10.     The applicant did not dispute that for the purposes of s 106J(2) of the Act, the census date was 31 March 2004.  He acknowledged that he did not formally withdraw from the course until 11 June 2004, being a date after the census date.  His application for remission of the debt was dated 9 July 2004, and was received on 12 July 2004.  The applicant contends that there are special circumstances in his case that warrant remission of the debt.  He did not dispute the existence of the debt. As his application for remission is made within 12 months of the withdrawal date for the course the Tribunal is able to consider the application (s 106L(1)(c)).

11.     The applicant gave the Tribunal a history of having attended a number of different schools in his secondary years.  He did not enter University when he left school, and he had various jobs over the years.  He had commenced an apprenticeship, but did not complete it.  He had undertaken a fitness leader’s course, but it would appear that nothing had ever quite worked out for him.  He had not been able to maintain consistent employment, and he had experienced financial difficulties.  He said he had been trying to obtain entry into University for years, and was pleased to be accepted and to commence his studies in the first semester of 2004.  His chosen course was eco-tourism, but he did not get into that course and enrolled in the other subjects referred to. 

12.     The applicant’s evidence was that he had a long standing back problem that caused him difficulties during the semester at University.  When he commenced his course he spent most of the time working in the science building where he was able to work on his own computer, and he obtained most of his information on line.  He avoided attendance at lectures, as although he was able to drive to the campus he had trouble walking to lectures.

13.     The medical records as contained in Exhibits A2 and A3 confirmed that the applicant did have a back problem.  He had sought treatment for that problem in the year prior to his entry to University.  He agreed that during the relevant period he did not seek any treatment for his back.  He also played competitive cricket throughout some of this semester.  The back problem was one of several problems that the applicant points to as giving rise to special circumstances in his case.

14.     The applicant gave evidence that he had significant problems with his vehicle during the semester at University.  When questioned as to why he preferred to use his own vehicle when he could have used public transport, he said that he had bad memories of an incident in 1999 when he used public transport.  He did not elaborate on these experiences.  He spent some considerable time working on his vehicle during the semester he spent at University.  It appears that this was a source of frustration, and at one stage he suffered a minor injury when he got brake fluid in his eye while repairing his vehicle, and there was worry and expense associated with trying to keep the vehicle roadworthy.  He did not allege that the minor eye injury interfered with his studies.

15.     The applicant said that he became increasingly disheartened as the semester wore on.  He spent eight hours on a maths assignment at one stage and only received a mark of 6 out of 20.  This added to an increasing feeling that he would fail, and partly because of prior history of failures in life, he elected not to sit the exams.  He said that for the two weeks prior to him formally dropping out of University, on 11 June 2004, he would lie in bed and watch television.

16.     The applicant acknowledged that he did not seek medical advice at the time, or throughout that semester.  He described himself as being very fearful of a breakdown if he had taken the exams and failed.  He described periods of fatigue, however he sought no assistance for this fatigue until many months after dropping out of University, and he was vague as to exactly when he experienced this fatigue.  Since leaving University he has not worked, and continues to be unemployed.

17.     The applicant acknowledged that he did not make any approach to the University about a medical supplementary exam.  He described himself as just wanting to “put it all in the bin”.  He said he tried everything he could, and ultimately he had no energy left, which is why he did not try to sit the exams.  He did not realise he may have the option of sitting the exams later if he had sought advice from University counsellors as to his position. 

18.     When questioned about his financial position the applicant advised that he was unemployed when he enrolled, and had been unemployed for some years.  He received Austudy during the relevant period.  He said he had trouble buying text books and finding second hand books.  He had difficulty buying the petrol to get to University, and he would sometimes use public transport.  He received Austudy throughout the relevant period, but struggled financially, and this was another stress he had to cope with.

19.     In summary, the applicant said that the HECS debt distressed him, and his failure to complete his studies was a painful experience for him.

20.     When the medical notes were produced the Tribunal resumed the hearing.  The medical notes in Exhibit A2 indicated that the applicant had presented to see a doctor in 2003 complaining of headaches, cervical spine pain and lumbar spine pain.  Some of the doctor’s notes were undated, but did record neck and back problems and a referral to physiotherapy because of acute exacerbation of headache, neck pain and lower back pain.  The applicant attended the Flinders Medical Centre Physiotherapy Service in September 2003.  The notes confirmed a history of lower back pain since he was 15 years of age.  The progress notes from Flinders Medical Centre, as contained in Exhibit A3, refer to psycho-social issues as being possible issues, and it is noted that on his last appointment in October 2003 he was to commence a course of hydrotherapy.  He then elected not to attend the course of  hydrotherapy.  When questioned about this he advised that he did not think he was ready for hydrotherapy. 

21.     The Kingston Family Clinic notes also have a notation relating to a consultation, some months after the applicant withdrew from University, dated Friday 22 October 2004.  The doctor made a note as follows:

“Back and neck pain limits ability to work, is a vegan, energy levels down, low protein levels, obsessional and delusional about foods, out of work for 12 weeks, left uni cos too tired (I refused to write out a Centrelink form for time off because I could not get a commitment from him to get regular treatment.  He was uncooperative and obsessional and I feel possibly bordering on delusional).”  [Exhibit A2]

consideration

22.     The applicant was a straightforward witness, although unusual in presentation and with some unusual views about diet. 

23. The applicant did not dispute the existence of the debt, and he acknowledged that his withdrawal did not occur until after the relevant date. The only issue for the Tribunal to consider was whether, pursuant to s 106L of the Act, the whole or part of the debt could be remitted on the basis of special circumstances.

24. Special circumstances, as referred to in s 106L(1)(b) of the Act, are further defined by reference to the Guidelines issued by the Secretary of the Department.

25. Section 106L(3) of the Act provides that the circumstances that are relied upon must be beyond the person’s control, and do not make their full impact until after the census date and make it impracticable for the person to complete the course requirements.

26. The Guidelines issued by the Secretary, pursuant to s 106L(3A) of the Act, add further definition to the requirements of s 106L(3) of the Act.

27.     The Tribunal is not satisfied that the special circumstances or the combination of circumstances upon which the applicant relies can be said to be “beyond his control” as per the Secretary’s Guidelines, and in that regard the Tribunal makes the following findings:

·     The applicant did have some back problems during the first semester, but they were not so significant that he was unable to continue with his study.  He sought no medical treatment for the problems, and he continued to play active sport for at least part of that semester.  He allowed the problem to persist.  Despite the problem he was able to attend at University, and obtain, in his view, sufficient information from on-line computer access.

·     The applicant felt pressure building on him during the semester.  He was under some financial pressure and eventually felt exhausted and chose not to sit the exams.  He again sought no assistance from University authorities.  There is no evidence that he sought medical treatment.  He made no inquiries about possibly delaying his exams. 

·     The applicant was fearful of failing and in the two weeks prior to his date of withdrawal he stayed in bed and watched television.  It was clear from the evidence that he had a consistent sense of failure based on prior life experiences, and was convinced he would not pass the exams, or at the most had an even chance of passing.  He chose to give up at that point.  He sought no assistance from mental health or other professionals who may have been able to assist him move beyond this crisis

28.     The Guidelines require that the special circumstances must be beyond the person’s control.  In this instance the circumstances were within the applicant’s control in that he could have sought medical advice or assistance from counsellors at  the University to ascertain what he could do to improve his position.  It is quite clear that the situation which developed was largely due to his own inaction, and he must take responsibility for that inaction. 

29.     The Guidelines specifically require that for the situation to be beyond the person’s control it must be a situation which occurs that 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.  The situation must be unusual, uncommon or abnormal.  A lack of knowledge or understanding of HECS or OLDPS is not considered to be beyond the person’s control. 

30.     In this instance, the situation was within the control of the applicant.  He sought medical advice in the previous year, and had elected not to go to hydrotherapy classes which had been made available to him.  He was aware of the availability of medical advice, through both Flinders Medical Centre and his GP, to assist him with his back problems, and also with any psychological problems he may have been suffering.  There was nothing abnormal or uncommon about his situation.  The full impact of the combination of circumstances did not affect him until after the census date, however he made no attempt to take action to improve his situation.

31.     Financial hardship alone does not give rise to an argument that special circumstances apply.

32.     In these circumstances the Tribunal does not accept that there is any basis for remission of the HECS debt. 

33.     The Tribunal has some sympathy for the applicant’s position in that it appears he became slowly overwhelmed by his circumstances as the semester wore on.  It was impossible to say, in the absence of specific evidence about his mental health,  that these circumstances, which ultimately resulted in his withdrawing from University that year, were circumstances that were beyond his control, within the meaning of the Guidelines. 

34.     In the circumstances the Tribunal affirms the decision under review.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell

Signed:         ...........J Coulthard.......................................
  Associate

Dates of Hearing  24 January 2005 & 8 March 2005
Date of Decision  8 April 2005
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms T Nguyen
Solicitor for the Respondent     AGS