Walker and Secretary, Department of Education
[2023] AATA 540
•30 March 2023
Walker and Secretary, Department of Education [2023] AATA 540 (30 March 2023)
Division:General Division
File Numbers:2022/5115, 2022/9669
Re:Stacey Walker
APPLICANT
AndSecretary, Department of Education
RESPONDENT
DECISION
Tribunal:Senior Member R Bellamy
Date:30 March 2023
Place:Brisbane
The decisions under review are affirmed.
............................[SGD]..............................
Senior Member R Bellamy
1.
CATCHWORDS
Withdrawal without penalty after failure to complete tertiary education course requirements – re-credit of FEE-HELP loan – whether special circumstances apply – whether medical conditions made it impracticable to successfully complete assignments – where symptoms fluctuated and Applicant undertook work for her employer on some days during relevant period
LEGISLATION
Higher Education Support Act 2003 (Cth)
CASES
Bow and Secretary, Department of Education [2020] AATA 114
Georgiou and Secretary, Department of Education and Training [2019] 8 AATA 170Zabaneh and Secretary, Department of Education and Training [2016] AATA 569
REASONS FOR DECISION
Senior Member R Bellamy
30 March 2023
Ms Walker commenced a Bachelor of Laws degree with the University of Southern Queensland (“USQ”) in July 2018.[1] In Semester 1 of 2020, she commenced Master of Project Management (“Property Development & Management”) subjects and initiated a change in the Bachelor of Laws degree from USQ to a Bachelor of Laws/Bachelor of Property at Central Queensland University (“CQU”).[2]
[1] A3, page 3 at 2.3.
[2] A3, page 3 at 2.4.
In Semester 1 of 2021, Ms Walker enrolled herself in:
·MGT8076 Project Based Change Management (“MGT76”);
·MGT8077 Project Risk Management (“MGT77”);
·MGT8078 Master of Project Management (“MGT78”); and
·MGT8079 Project Management Research Project (“MGT79”).
She received FEE-HELP loans in relation to these units. FEE-HELP is a loan that students may use to pay their tuition fees. In some circumstances the balance of a loan for a particular unit will be re-credited to the student if they fail to successfully complete it. The USQ enrolment policy provides that students who withdraw from a course after the census date may, on the basis of compassionate and compelling circumstances, apply in writing to the University to have, among other things, their academic penalty waived and FEE-HELP balance re-credited. Students must apply in writing by mail or email. Reflecting the legislation, the policy states that if a request for withdrawal without academic penalty with fee reversal is approved, USQ must remit any HELP debt acquired for the course.[3]
[3] T32, page 134.
Ms Walker failed to successfully complete the four MGT units. She lodged applications for Withdrawal Without Penalty and Reversal of Fees for each unit. USQ rejected each application. Ms Walker requested internal review of the decisions with respect to MGT76, MGT78 and MGT79. The decisions with respect to MGT78 and MGT79 were reviewed together and the decision regarding MGT76 was reviewed separately. Each internal review affirmed the decision/s in May 2022. Ms Walker sought review of the two internal review decisions in the Tribunal. Accordingly, it is the units MGT76, MGT78 and MGT79 that the Tribunal is concerned with for the purposes of this application. Ms Walker gave oral evidence and she provided some documentary evidence. For the most part, I accept Ms Walker’s evidence about events that occurred.
Section 104-25(1) of the Higher Education Support Act 2003 (“the Act”)[4] provides that a person is entitled to have their FEE-HELP re-credited for a unit of study if certain criteria are met. The Respondent accepts that all the criteria other than “the provider is satisfied that special circumstances apply to the person” are met.
[4] S104-25(1)(c).
Section 104-30(1) of the Act relevantly provides that:
“…special circumstances apply to the person if and only if the higher education provider receiving the application 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 in question; and
(c) make it impracticable for the person to complete the requirements for the unit in the period during which the person undertook or was to undertake the unit.”
It is not in dispute that after the census date Ms Walker came down with a sinus infection and, after three weeks, began to suffer from cervicogenic headaches, and that both conditions were beyond her control. What is in dispute is whether those medical conditions made it impracticable for her to successfully complete the three units.
FACTS
In November 2020 Ms Walker commenced full-time employment with Subway, dealing with commercial leases.[5] Her workload increased in the new year and her employment continued throughout 2021. On 19 February 2021, her partner was injured at work.[6]
[5] Transcript, page 6, line 20.
[6] Transcript, page 6, lines 42 to 46.
The university semester commenced on 22 February 2021. Ms Walker was enrolled in the four MGT units and one law subject for which she had a supplementary exam.[7] She was also enrolled in four Law units at CQU.[8] The MGT courses had a census date of 19 March 2021.
[7] A3, page 3 at 2.5.
[8] Ibid
Ms Walker submitted the mid-semester assignments for the MGT subjects late, having obtained extensions for two of them. She cannot recall the exact reasons she provided for requesting extensions but she assumed it was related to “excessive stress, lockdowns causing more work for me, and the pressure I was under”.[9] She said around April 2021, she was working 10 hour days in the office and skipping breaks due to an excessive workload.
[9] A2-1, page 2.
Semester 1 ended on Friday 4 June 2021.
Ms Walker understood that a request for an extension had to be made through the student portal with a reason and short statement provided. There were four reasons available in 2021: COVID, personal, medical and work‑related.[10] She said the default length of an extension was seven days,[11] although I note that none of the extensions given to Ms Walker were seven days in length. I also note that the Enrolment Policy provided for mail and email applications.
[10] Transcript, page 15, lines 42 to 44.
[11] Transcript, page 16, line 12.
The review of the decision to reject Ms Walker’s application for Withdrawal Without Penalty and Reversal of Fees for MGT78 and MGT79 stated, in relation to both courses, that Ms Walker requested an extension on 24 May due to COVID lockdowns and she was given an extension until 9 June.[12] Ms Walker recalled slightly different dates but nothing turns on that. She recalled her reason was COVID lockdowns and the resulting increased workload in her employment.
[12] T16, page 77.
The medical evidence indicates that on Thursday 10 June 2021 Ms Walker saw a doctor about stress and obtained a medical certificate for her gym. She recalled that at this time she was feeling overwhelmed with all of the things she needed to get done and was not able to bring herself to do any of them.[13]
[13] A2-1, page 2.
It is not disputed that Ms Walker began to suffer from a sinus infection on Friday 11 June 2021. She gave evidence that she had completed her assessments for her CQU units before she got sick.[14]
[14] A3, page 3 at 2.6.
On Monday 14 June 2021, Ms Walker saw a doctor who prescribed antibiotics and provided a medical certificate indicating that she would be “unfit for duties” on 14 and 15 June 2021.[15] Ms Walker underwent a COVID test that day which caused trauma to her nasal cavity, resulting in bleeding for several days. She requested a further extension on “mental health/sinus infection grounds” and she was given an extension until 18 June.
[15] T9, page 47.
That night (14 June 2021), Ms Walker completed an online quiz in a CQU Law subject. She described it as an easy task that took her one hour to complete late at night after she had taken antibiotics which made her feel “mildly better”.[16] She returned to work on Wednesday 16 June 2021 feeling no better.[17]
[16] Transcript, page 9, lines 4 to 5.
[17] A2-1, page 2.
On 19 June 2021 Ms Walker failed the online supplementary exam in her USQ law subject. It had to be completed between 8.30am on Thursday 17 June and 8.30am on Saturday 19 June 2021. She later sought withdrawal without penalty and reversal of fees on the basis that she had scheduled a leave day on 18 June 2021 to do the exam but her sinus infection caused a headache that was so painful she could not do it. She tried to do the exam in the early hours of 19 June but was unable to tolerate looking at her computer screen for any significant time.[18]
[18] A3, page 2.
On Monday 21 June 2021 Ms Walker obtained another medical certificate that said she was “unfit for duties and examinations” that covered 18 to 21 June 2021.[19] On 29 September 2021, Ms Walker obtained a medical certificate retrospectively covering 17 to 20 June 2021 – see below at paragraph 38.
[19] T9, page 48.
Semester 1 ended on Sunday 20 June 2021.
Ms Walker described her symptoms as having fluctuated during the first two weeks of the infection.[20] She was not certified unfit for duties on the days 22 to 27 June 2021, and she worked on four weekdays in that period.
[20] Transcript, page 32, lines 6 to 7.
On Monday 28 June 2021 Ms Walker’s sore throat had resolved but her nasal passages were still sore and causing headaches. She was prescribed a stronger antibiotic (Doxycycline). She requested extensions for her assignments on the grounds of her illness. She was unable to confirm if she applied via email rather than through the portal but she was granted extensions until 2 July 2021.[21]
[21] Transcript, page 16, lines 16 to 27.
The stronger medication coincided with the onset of headaches that affected the back of her skull whereas the sinus headaches affected the front. During that week, her employer was moving offices.[22] Ms Walker said she took two days off work without a medical certificate “in and around the beginning of June due to the side effects of the medication”[23] although I think she must have meant July, not June, as she was not taking the medication at the beginning of June. On Friday 2 July 2021, she saw a doctor about the medication and headaches.
[22] A3, page 2.
[23] Transcript, page 20, lines 35 to 37.
Ms Walker did not submit any of the assignments by the new due date. She claimed she did not seek further extensions because the emails granting the extensions to 2 July 2021 said no further extensions would be given. Those emails follow a standard format with standard wording. Each contained the passage:
“Please Note: Deferred assessments are considered a significant concession and as such are not permitted to be subsequently deferred again for any reason. Please ensure you submit your assessment by the new scheduled due date above.” [24]
[24] A4.
This passage refers generically to “deferred assessments”, not specifically to the deferral that the letter granted. It appears to be a standard warning that no more than one deferral would be granted. It does not appear that this rule was strictly enforced given Ms Walker’s assessments had already been deferred multiple times, and she was obviously aware of that.
The internal review decision relating to MGT78 and MGT79 noted, in relation to MGT78, “Further request for deferral approved to 13 August”. In relation to MGT79, it noted “Further request for deferral approved to end of November.”[25] Ms Walker claimed to have been unaware of these further deferrals at the time and to have been of the belief that after 2 July had passed she could not submit the assignments.[26] The internal review decision relating to MGT76 stated “Deferral granted for Assignment 2 - marked 18 November”, although it did not explicitly state that a deferral had been granted.[27]
[25] T16, page 77.
[26] Transcript, page 36, lines 20 to 23.
[27] T15, page 74.
On Monday 5 July 2021 Ms Walker was diagnosed with cervical tension headaches. Throughout July and August 2021, she underwent traction and had nerve blocks. She indicated that her headaches caused constant pain and discomfort which led to sleep deprivation, lethargy and inability to complete daily tasks and concentration on simple tasks, which made concentrating for any length of time on an assignment or exam difficult and painful.
Ms Walker continued to have traction performed on her neck. She also had physiotherapy twice per week until around November/December 2021.[28]
[28] Transcript, page 24, lines 31 to 32.
In Semester 2 of 2021, Ms Walker successfully completed three subjects at USQ, having been granted a total of nine extensions.[29] In relation to that semester, she indicated she needed extensions “just for exhaustion” which also caused memory issues and that “multiple requests were made for medical reasons”. [30]
[29] T11, page 59; T16, page 77.
[30] A2-1, page 4.
In that period, she was certified as unfit for duties and/or unfit for examinations on 26 and 27 August and 29 September 2021.
On 26 August 2021, a doctor recorded that Ms Walker had suffered from chronic cervicogenic headaches and pain which had significantly impacted her ability to attend to academic demands since June. He said the problem was unresolved but treatment was ongoing.
At the end of September, Ms Walker’s partner was told his WorkCover payments would cease immediately.
Ms Walker indicated that in October 2021 she looked at her grades and saw that the MGT subjects from Semester 1 said “deferred”, so she contacted the course coordinators who told her she could still submit the assignments. She recalled that as far as she was aware they had been due by 2 July 2021, but she was told to submit them as soon as possible. She submitted the assignment for MGT76 on 8 November 2021 and received a fail grade. She did not submit the assignments for MGT78 or MGT79. In early November 2021, Ms Walker applied to fill her boss’s role over the Christmas holidays[31] which I take to indicate that she felt well enough to take on more responsibility.
[31] A2-1, page 6.
CONSIDERATION
While Ms Walker had previously raised many factors that she said impacted her ability to successfully complete the MGT units, for the purpose of this application she relied only on the sinus infection and cervicogenic headaches. Her employment and study load were both circumstances that were within her control. Those two things, along with her financial situation, made their full impact before the census date. They are not circumstances that could constitute special circumstances under section 104-30(1) of the Act.
The Respondent accepts that Ms Walker’s cervicogenic headaches and sinus infections were beyond her control, and that each condition emerged after the census date which was 19 March 2021. The only contentious issue is whether those medical conditions made it impracticable to complete the final assignments for each unit.
There are previous Tribunal decisions, which are not binding but obviously may be helpful, that have considered this issue in similar contexts. In Zabaneh and Secretary, Department of Education and Training [2016] AATA 569 (“Zabaneh”), the Tribunal stated that “impracticable” means “not able to be done”. [32] In Bow and Secretary, Department of Education [2020] AATA 114, the Tribunal considered Zabaneh and observed that the test for circumstances making it impracticable to complete the relevant courses of study is a high bar.[33] In Georgiou and Secretary, Department of Education and Training [2019] 8 AATA 170 the Tribunal said:
“However, while the available evidence may lead to a conclusion that it would be difficult for the Applicant to complete the requirements of the units, it is insufficient to establish that circumstances were such that it was impractical for this to be done”.[34]
(Underlining added)
[32] At [45].
[33] At [53].
[34] At [20].
The assignments in question were due on 1 and 4 June 2021. By 11 June 2021 Ms Walker still had not completed them, and the only reason disclosed by the evidence is that she was stressed and overwhelmed by all the tasks she had. Ms Walker created that situation before the census date by enrolling in the four MGT units at USQ, four Law units at CQU and a arranging to sit a supplementary exam in a USQ law unit, all while working full-time.
On 29 September 2021, Ms Walker’s doctor completed medical certificates on USQ and CQU forms. The USQ certificate certified that Ms Walker was unfit to sit examinations between 17 and 20 June 2021, and that she was severely impacted in relation to lectures, assignments, practical study, private study, and examinations due to a medical condition from 14 to 28 June 2021. Her doctor added that:
“The medical condition continues to impact the patient’s ability to complete study and work activities, in a minor to moderate way and varies on a daily basis”.
Ms Walker’s application for re-credit of FEE-HELP for the USQ law subject in which she failed the supplementary exam was successful because of this medical certificate, which USQ took to mean that her medical condition “prevented her from successfully completing her supplementary exam”.[35] The days on which Ms Walker could complete the online exam, being 17 to 19 June, were all covered by medical certificates.
[35] T8, page 39.
The “CQU Student Accessibility and Equity STUDENT REGISTRATION/TREATING HEALTH PROFESSIONAL REPORT” certified that Ms Walker suffered from a severe, fluctuating medical condition that, relevantly, affected her attention and concentration, without any reference to dates. Her doctor described the condition as:
“Cervicogenic headaches causes sleep deprivation due to constant pain and discomfort. Leading to lethargy and inability to complete daily tasks in particular attention and concentration to simple tasks. This makes concentrating for any length of time on an assignment or exam difficult and painful. The ongoing nature of the injury has also caused a disinterest in previously enjoyed hobbies and activities”.
He recommended a part-time study load (1-2 units) and alternative exam arrangements and extra time to complete assessments “due to the lethargy and inability to concentrate due to ongoing pain and discomfort”.
I accept that Ms Walker developed a sinus infection on 11 June 2021 which caused pain and difficulty sleeping and that after 28 June 2021 she began to suffer from cervicogenic headaches. However, in the period 11 June and 2 July 2021, Ms Walker worked on some days. She took two days off work without a medical certificate plus the days that were covered by certificates. That leaves a total of six week days when she worked.
Ms Walker indicated in a written statement that in June and early July 2021, her partner was receiving 85% of his wages from WorkCover and she was having to deal with an incompetent co-worker. She was “still working 12+ hour days, and often on the weekends or late at night”.[36]
[36] A2-1, page 3.
Ms Walker was asked how she could work in her job but not manage to complete her assignments. She replied:
“So, at that point in time I was the sole income earner in my household, and so the priority became making sure I still had a job. So, whilst, yes, I was working full‑time I was also working 12 to 14‑hour days… So, it became a case of what do I need to do to get the, like, the absolute crucial part of my day done, and that’s where all my energy was focused, and because I was the only one with an income, that meant that unfortunately my job came first.”[37]
[37] Transcript, page 10, lines 28 to 30; page 11, lines 7 to 10.
This evidence is not accurate. Until late September 2021, Ms Walker’s partner was in receipt of 85% of his salary. Further, Ms Walker conceded that she was confident that she “would not have been let go”.[38] I accept her evidence that, after a long working day, suffering with her illness, she was too exhausted to then work on assignments. However, she was entitled to sick leave and annual leave. She claimed that she would have exhausted her sick leave by the third week of the infection,[39] however when asked why she did not take annual leave she said most employers would not like you to take annual leave if you have sick leave available.[40] That suggests she had sick leave available. Further, there is no evidence that she even attempted to take annual leave. I am satisfied that Ms Walker could have taken more leave days than she did during the period 11 June to 2 July 2021.
[38] Transcript, page 22, lines 7 to 8.
[39] Transcript, page 23, lines 20 to 21.
[40] Transcript, page 24, lines 10 to 11.
Ms Walker conceded that she did not take leave from work to complete her assignments because it would have caused her stress knowing the workload that she would return to as she was the only person doing the work. She indicated that taking two days off had exacerbated her cervicogenic headaches because of the stress from the work she came back to.[41] There is no medical evidence to corroborate that claimed causal connection. Further, Ms Walker did not claim that taking leave, or the work building up, would have resulted in her failing to meet important deadlines or missing important work commitments. In addition to the weekdays when Ms Walker was clearly capable of spending several hours performing tasks for her employer – because she did – there was a weekend on 26 and 27 June 2021 when she was not certified unfit for work of examinations.
[41] Transcript, page 12, lines 41 to 45.
Ms Walker gave evidence that a lot of her employment work was done on a computer screen.[42] She used the “track changes” function to make changes to leases which meant she was “staring at a computer screen for a long period of time”. She would also print a lease, make annotations on it, then type the amendments on the computer.[43] The act of looking down made the pain from her sinus infection worse.[44] These tasks are of the same general type as the work involved in doing assignments. Ms Walker sought to draw a distinction between work and assignments on the basis that an assignment is one task that is the same for hours on end, whereas she could switch between work tasks if she had difficulty concentrating.[45] I do not accept this distinction: she did not put forward any reasons why assignments had to be done for hours on end rather than in multiple small blocks of time or why she could not have taken short breaks or switched between assignments and work.
[42] Transcript, page 13, lines 11 to 14.
[43] Transcript, page 13, lines 32 to 44.
[44] Transcript, page 14, lines 1 to 3.
[45] Transcript, page 22, lines 26 to 29.
None of the medical evidence indicates that Ms Walker was physically or mentally unable to complete the assignments by the 2 July 2021 deadline. Her condition fluctuated and, despite her symptoms, she was able to spend several hours on some days performing activities for her employer that were of the same nature as the activities involved in doing assignments. I do not accept that she could not have reasonably taken leave to work on assignments or to rest with a view to working on assignments outside work hours when she was well enough.
I am not satisfied that it was impractical for Ms Walker to successfully complete the assignments because of her medical conditions. Rather, while working full-time she had taken on a very heavy study load which she was already failing to cope with before she got sick, and after she got sick she chose to use the time when she was relatively well to do paid work.
The evidence about whether Ms Walker knew that the due dates for her assignments had been extended to August and November, respectively, is unclear. Even if I accept that it was only in October 2021 that she realised she could still submit her assignments, she has not provided convincing evidence that a medical condition prevented her from doing that in the extra time she was after that realisation. Ms Walker continued in her paid employment, there were very few days in Semester 2 covered by medical certificates, and her doctor described her condition in late September 2021 as varying on a daily basis and affecting her ability to undertake work and study in a mild to moderate way. I am not satisfied that it was impractical for Ms Walker to successfully complete the three MGT assignments in Semester 2 2021 because of any medical conditions.
Overall, I am not satisfied that there were circumstances that were beyond Ms Walker’s control and did not make their full impact until on or after the census date, that made it impracticable for her to complete units MGT76, MGT78 and MGT79 in 2021 during the period in which she was to undertake each of the units of study. Accordingly, I am not satisfied that special circumstances apply to her. There is no obligation for USQ, on the Respondent’s behalf, to re-credit Ms Walker’s FEE-HELP balance with an amount equal to the amounts of FEE-HELP assistance that she received for those units in Semester 1 of 2021.
The decisions under review are affirmed.
I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy
.........................[SGD]...........................
Associate
Dated: 30 March 2023
Date of hearing: 12 January 2023
Date last evidence received: 13 February 2023
Applicant: By video-conference
Solicitors for the Respondent: Ms Elle Tattersall
Sparke Helmore
EXHIBIT LIST
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
T1
Section 37 T documents (T1 to T36 paged 1 to 231)
R
Various
20 July 2022
A1
3 x Letters from Dr Catherine Benson dated 8 August 2022 and 16 August 2022 (x 2)
A
Various
8 September 2022
A2
Applicant Evidence lodged on 17 October 2022 including
A2-1 Statement of the Applicant (7 pages)
A2-2 Email from the Applicant to the Respondent dated 29 September 2022 (1 page)
A2-3 Applicant’s Patient Health Summary (14 pages)
A
Various
17 October 2022
A3
Applicant’s Response to the Respondent’s Statement of Facts, Issues and Contentions (11 pages)
A
3 January 2023
5 January 2023
A4
3 x Emails from USQ to Applicant
A
28 June 2021
13 February 2023
R1
Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 9)
R
30 November 2022
30 November 2022
0
2
0