Wheatley and Secretary, Department of Education and Training

Wheatley and Secretary, Department of Education and Training [2019] AATA 4896 (21 November 2019)
Division:GENERAL DIVISION
File Number(s):2019/0097
Re:Sonia Wheatley
APPLICANT

Secretary, Department of Education and TrainingAnd
RESPONDENT

DECISION
Tribunal:Senior Member D O’Donovan
Date:21 November 2019
Place:Canberra

The Tribunal affirms the decision under review
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Senior Member D O’Donovan
Catchwords
HIGHER EDUCATION – withdrawal after the census date – special circumstances – were circumstances beyond the person’s control – did illness not make its full impact on the student until after the census date – did the condition make it impracticable for the student to complete the requirements for the unit in the period during which the she undertook the unit – the impact of the condition was apparent prior to the census dates – decision not to refund affirmed
Legislation
Higher Education Support Act 2003 (Cth)
Secondary Materials
VET Administrative Information for Providers 2015 (VET AIP)
REASONS FOR DECISION
Senior Member D O'Donovan
21 November 2019
INTRODUCTION

The Higher Education Support Act 2003 (HES Act) provides for the granting of student loans to pay tuition fees. This assists students to undertake further post high-school study including vocational education and training (VET). If the loan is granted, the Commonwealth pays the amount loaned directly to the VET provider to cover the tuition fees for the student.
The advantage to the student is that they are able to undertake the VET course of their choice without needing to pay fees upfront. The student does however have a FEE HELP balance and obligations to repay the loan to the Commonwealth as specified in the HES Act.
Students who enrol in units which make up a course, can withdraw from those units without incurring fees (and a corresponding debt to the Commonwealth) provided they do so before what is known as the ‘Census Date’ - a date which is set by the course provider and which generally occurs a few weeks after the commencement of the unit of study.
A student can withdraw from course units after the census date but the student normally remains liable for the FEE HELP debt incurred as a consequence of that enrolment. The HES Act does however provide for the re-crediting of the FEE HELP debt in certain specified circumstances. The debt re-crediting is referred to in the HES Act as re-crediting a person’s VET FEE HELP balance.
BACKGROUND
The applicant in this case is seeking a re-crediting of fees incurred as a result of her enrolment in a Graduate Diploma of Adult Language, Literacy and Numeracy Practice (the Course), which was provided on-line by TAFE NSW. She enrolled in the Course in April 2013, failed to complete a single unit and submitted a form withdrawing from the course on 3 November 2015, more than a year after the passing of the last census date for the units in which she was enrolled.
On 17 December 2015, the applicant submitted an application for the re-crediting of her VET FEE-HELP balance to TAFE NSW, seeking a re-credit on the basis that special circumstances applied to her situation. The decisions of TAFE NSW to refuse to re-credit the applicant’s VET FEE-HELP balance have led to this application for review.
SCOPE OF THE DISPUTE
The conditions relevant to the applicant’s case which must be met to require the VET provider to re-credit the applicant’s FEE HELP Balance are set out in clause 46(2) of Schedule 1A to the HES Act.
It is accepted by the respondent that the applicant meets all of the conditions specified in clause 46(2) except one – the respondent contends that the applicant does not meet paragraph (c) of clause 46(2) which provides as follows:
A VET provider must on the Secretary’s behalf, re-credit a person’s FEE HELP balance with an amount equal to the amounts of VET FEE-HELP assistance that the person received for a VET unit of study if:
(a)…
(b)…
(c) the provider is satisfied that special circumstances apply to the person (see clause 48);
Clause 48 provides as follows:
For the purposes of paragraph 46(2)(c), special circumstances apply to the person if and only if the VET 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 VET 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.
The Department of Education and Training (the Department) has published a policy guidance document titled ‘VET Administrative Information for Providers 2015’ (VET AIP).
Chapter 10 states the following in relation to the application of the special circumstances test:
Special circumstances beyond a person’s control
Circumstances could be considered beyond a person’s control if a situation 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. This situation would generally be expected to be unusual, uncommon or abnormal.
For example, a lack of knowledge of how VET FEE-HELP works or the requirements regarding census dates would not be considered beyond a person’s control.
Special circumstances that do not make full impact until on or after the census date
Circumstances could be considered not to make their full impact on the person until on or after the census date for the VET unit of study if the person’s circumstances occurred
·before the census date, but worsen after that day;
·before the census date, but the full effect or magnitude did not become apparent until after that day; or
·on or after the census date.
Students do not need to demonstrate they were unable to withdraw from the VET unit of study prior to the census date.
Special circumstances arising from pre-existing conditions
A circumstance that first occurred before the census date may satisfy the special circumstances requirement where it worsens after that day or the full effect or magnitude does not become apparent until after that day.
For example, a person may have an illness or other underlying, pre‐existing condition or incapacity prior to the census date for a VET unit of study, but that condition may worsen, or that person may suffer from an aggravation, deterioration or episode, after the census date.
Alternatively, the full implications of a person’s condition may not have been apparent until after the census date. This may be because recovery does not go to plan, or the degree of disability or incapacity for study are not fully realised until after the census date.
The VET provider must consider whether the person’s circumstances changed on or after the census date and when the full effect or magnitude of the circumstances became apparent, taking into account any additional circumstances, including continuation of a pre‐existing condition, that may have affected the person on or after the census date
Special circumstances that made it impracticable for the person to complete the VET unit of study
The term impracticable is defined as ‘not practicable, that which cannot be put into practice with the available means’. The VET provider should keep this definition in mind when deciding whether a student’s circumstances made it impracticable for them to complete a VET unit of study.
Circumstances that make it impracticable for the person to complete the requirements for their VET unit of study may include:
·medical circumstances, for example where a person’s medical condition has changed to such an extent that he or she is unable to continue studying;
·family/personal circumstances, for example death or severe medical problems within a family, or unforeseen family financial difficulties, so that it is unreasonable to expect a person to continue studies;
·employment related circumstances, for example where a person’s employment status or arrangements have changed so the person is unable to continue their studies, and this change is beyond the person’s control …
Consideration should also be given to whether at the time the person’s special circumstances emerged it was already not practicable for the student to meet the requirements of the VET unit of study.
A person is unable to complete the requirements for a VET unit of study, for example, if the person is unable to:
·undertake the necessary private study required, or attend sufficient lectures or tutorials or meet other compulsory attendance requirements to meet their compulsory course requirements; or
·complete the required assessable work to the required standard; or
·sit the required examinations and obtain a required mark; or
·complete any other course requirements because of their inability to meet the above.
I am satisfied that the VET AIP is Government policy and accordingly ought to be applied provided it is not unlawful or productive of injustice in the case before me. I am satisfied that it is neither of those things and so I will be guided by the policy in making my decision.
FACTUAL FINDINGS
Based on the material in the Tribunal Documents referenced by the respondent in its Statement of Facts, Issues and Contentions, and the evidence of the applicant, I make the following findings of fact.
The applicant enrolled in the Course on 29 April 2013 and submitted a request for VET FEE-HELP assistance on the same date. The Course was an online course which did not require attendance at TAFE and allowed the applicant to progress at her own pace.
The applicant was progressively enrolled in the Units within the Course which had census dates as follows:[1]
·Unit 1 – 13422 - 13 May 2013;
·Unit 2 – 13423 - 29 July 2013;
·Unit 3 – 13424 – 21 October 2013;
·Unit 4 – 32683 – 17 February 2014;
·Unit 5 – 32684 – 12 May 2014; and
·Unit 6 – 32685 – 28 July 2014.
[1] Tribunal Document (T) 3.
The applicant also enrolled in a new version of the Course in 2014 and commenced the unit Adult Language, Literacy and Numeracy Practice – 41273 which had a census date of 11 September 2014.
In 2013, and the first five months of 2014, the applicant failed to make significant progress in relation to the Course. Despite this, she did not attempt to withdraw from the Course and continued to allow census dates to pass, thus crystallising her FEE-HELP debt for five units of the Course.
On 14 May 2014, TAFE NSW sent the applicant an email advising that an additional FEE-HELP debt had just been recorded for the applicant (as the 12 May 2014 census date had just passed). The email noted that the applicant had been finding it difficult to find time to complete work for the Course and advised the applicant that if she decided it was not practical for her to complete the Course she could withdraw from the Course within the next five days in which case the VET FEE-HELP debt the applicant had just incurred would be reversed.[2]
[2] T9, folio 83.
The applicant did not withdraw from the Course. In late May and early June 2014 she gave active consideration to transferring to the newer version of the Course to extend the time she had to complete the Course. However, at the start of June 2014 she decided to persist with her enrolment in her original course with a deadline for completion of September 2014. The applicant failed to make progress in June or July 2014 and, on 17 July 2014, the applicant advised that she wanted to transfer to the new version of the Course which would extend her date of completion to 20 November 2015.
On 19 March 2015, 7 May 2015 and 15 May 2015 the applicant submitted assessment tasks. However, on 19 August 2015 the applicant advised that she did not want to continue the Course as personal trauma in the applicant’s life had made study infeasible and asked if a refund of her fees was possible. The applicant was advised that this was unlikely. She was, however, provided with the forms to apply for a re-credit of her FEE-HELP balance.
Her initial application for a re-credit (at T15) described a number of matters which contributed to her failure to progress in the Course and which led her to withdraw from the Course. Some of the matters raised in that document are no longer pressed as bases for establishing special circumstances (for example the effects of the applicant’s divorce many years prior and the death of her pet). However, her description of the reasons for her failing to progress represents the best account of her functioning at the time and so I will extract a significant part of the document as the most reliable, contemporaneous account of matters which affected her ability to progress through the Course.
I enrolled in the Graduate Diploma in Adult Literacy and Numeracy Study to further my prospects for permanency with TAFE. However, less than two months after committing to study, I gained a four day a week temporary position teaching at Monteagle Public School. The school is 62 km out of Cowra meaning close to a two hour return commute. I found that the two different employment systems expectations and workload, plus the travel combined with my responsibilities at home to be very demanding. The full impact of all I was trying to manage and the circumstances I was trying to achieve it under, left me feeling overwhelmed and pressured. Despite my best intentions it made fitting in study next to impossible for me.
TAFE were generous in extending the course closure to give me another 18 months to complete which I thoroughly appreciated and fully intended to embrace however, I continued to encounter the same difficulty juggling family, work, travel and study. At the commencement of this year [2015] when re-structuring in TAFE resulted in the Grenfell Certificate I Access to Work and Training class I taught at Grenfell folding into other modes of delivery and my work at Monteagle Public School averaged out to around three days a week, I fully intended finish the course. Then my school requested me to study a new wave of teaching methodology referred to as L3 – Literacy, Language and Learning. It involved six training days in Wagga Wagga with the course requiring study time, work submissions and a restructuring of the classroom environment. This work is paying the bills so I needed to take on the training. The considerable time and effort needed to complete the requirements for the Graduate Diploma I found difficult to find...in September of this year I finally came to terms with the fact that on this occasion, under the prevailing circumstances, that it was simply impracticable for me to achieve course completion.[3]
[3] T15.
Three things should be noted about this explanation of the applicant’s circumstances. First, the change in circumstances on which she relied was apparent ‘less than two months after committing to study’. This means the changed circumstances were apparent by June 2014 and thus pre-dated all but one of her census dates. Second, the applicant continued to encounter ‘the same difficulty’ through to the end of 2014. Third, the applicant was able to undertake an L3 – Literacy, Language and Learning course in 2015.
Sometime around November 2015 the applicant began to experience gut symptoms which led to a referral to an endoscopist some 18 months later.[4] On 2 February 2016, TAFE NSW made a decision that special circumstances did not apply. The applicant sought review of that decision and it was affirmed on 23 March 2016. The applicant did not immediately seek review of that decision.
[4] Supplementary Tribunal Document (ST) 2, folio 303; ST5, folio 327.
On 8 August 2016, the applicant began to experience bouts of excruciating chest pain radiating up to her jaw. The cause of this problem was never resolved but it led to further tests which included endoscopies to explore the applicant’s digestive system.
In late 2017, the applicant was diagnosed with a number of conditions including a helicobacter pylori infection which was treated with anti-biotics.[5] The infection caused gastrointestinal upset with some systemic inflammatory response, which included fatigue and concentration problems.
[5] ST2.
The applicant was treated with anti-biotics and by 18 November 2018 she had completed the treatment and she was clear of the infection. The results of the treatment were, on the applicant’s account, dramatic. She describes it in the following terms:
I am now well, my body is clear of infection, my thinking is clear, I can exercise and my body is recovering.[6]
[6] ST1, folio 301-302.
On 28 November 2018, the applicant sought to re-agitate the issue of the refund of her FEE-HELP balance on the basis of special circumstances.
She originally contacted TAFE NSW directly but eventually applied for review to the Administrative Appeals Tribunal (the Tribunal) on 7 January 2019. On 4 February 2019, the Tribunal granted the applicant an extension of time for her to make her application.
SUBMISSIONS
Prior to the hearing the applicant filed a number of submissions identifying a number of factors which affected her ability to undertake her course, including her health conditions and her employment. However, by the time the hearing concluded on 27 September 2019, the applicant pressed only one basis on which she said special circumstances applied and it related to the conditions which she was diagnosed with in late 2017.
The applicant accepts that she must meet all three tests provided for in clause 48 in order to succeed. That is to say, she must establish that circumstances applied to her which:
(a)were beyond her control;
(b)did not make their full impact on her until on or after the census date for the VET unit of study in question; and
(c)made it impracticable for her to complete the requirements of the unit in the period during which she undertook, or was to undertake, the unit.
Her submissions are best summarised in her own words:
The illness affecting me was beyond my control, it worsened, the full effect was only later apparent and the foggy thinking, cognitive processing and memory issues which are characteristics [of] the stomach infection I experienced and the complications caused by it. These factors made it impracticable for me to complete the study.[7]
[7] Applicant’s Submissions at Hearing.
The respondent submits that none of the criterion for special circumstances has been established.
It contends first that there is insufficient evidence to establish that the applicant’s medical condition existed during the period in which she was to complete the Course.
Second, her illness either made its full impact on the applicant before the census dates for the Units, or after the Course was completed depending on which version of events is accepted.[8] The evidence does not support a finding that the symptoms changed or worsened during the period in which she was to complete the units.
[8] See Respondent’s Statement of Facts, Issues and Contentions at [11.3].
Third, the respondent contends that there is no evidence that the applicant’s medical condition changed during the period in which the applicant was to complete the units in such a way as to render it impracticable for her to complete the units.
CONSIDERATION
For the applicant to succeed on the basis of the argument pressed at the hearing, she must establish that she was suffering the effects of her bacterial illness during the currency of the Course such that it rendered it impracticable for her to complete the Course. She has failed to discharge that burden.
On the evidence before me I am satisfied that the symptoms arising from her bacterial illness did not emerge until around November 2015.[9] That being the case, it cannot have made it impracticable for her to complete the requirements for the unit in the period during which she was to undertake the unit.
[9] This finding is supported by ST2, folio 303 and ST5, folio 327.

In relation to the first six units the applicant was to undertake them between April 2013 and September 2014. In relation to the last unit in which she enrolled, the deadline for completion was November 2015.
It was clear well before November 2015 that the applicant would be unable to complete the Course given her long demonstrated inability to submit all the assessments required for unit completion. That inability to complete units could not have been the product of any symptoms from an illness, because those symptoms did not emerge until November 2015 at the earliest. The applicant demonstrated from early 2013 that even without the symptoms which she developed in November 2015 she was not able to complete units. It was not the symptoms of any illness that made it impracticable for her to complete the course requirements in the relevant period but something else. I do not have to determine what that something else was but it appears likely that it was the things described in her first application for special consideration (see paragraph [21] above). On this view of the facts the applicant’s medical condition does not satisfy the requirements for a finding that it amounted to a special circumstance.
The applicant gave evidence that she suffered from foggy thinking, cognitive processing difficulties and memory issues dating back to the time when she was undertaking the Course. Even if that were accepted, which it is not, having regard to the contemporaneous documentation, those symptoms and their impact on the applicant’s ability to undertake the Course would have been obvious before many or all of the census dates which passed and consequently could not satisfy the special circumstances requirements.
In these circumstances, I am not satisfied the applicant has established that special circumstances apply and consequently the decision under review is affirmed.

I certify that the preceding 41 (forty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D O’Donovan.

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Associate
Dated: 21 November 2019

Date(s) of hearing: 27 September 2019

Applicant:

Solicitors for Respondent:

In person

Ms Kate Ervin, Maddocks Lawyers

[2019] AATA 4896

21 November 2019

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