William Miller and Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education
[2013] AATA 128
[2013] AATA 128
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2664
Re
William Miller
APPLICANT
And
Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 13 March 2013 Place Sydney The Tribunal affirms the decision under review.
...................[sgd].....................................................
Ms G Ettinger, Senior Member
CATCHWORDS
EDUCATION AND RESEARCH – student assistance – withdrawal from units after census date – application for remission of debt in relation to units enrolled in – whether special circumstances exist – decision affirmed
LEGISLATION
Higher Education Support Act 2003 (Cth) ss 36-20, 36-21
SECONDARY MATERIALS
Administration Guidelines 2012 (28 November 2011, made pursuant to s 238-10 of the Higher Education Support Act 2003)
REASONS FOR DECISION
Ms G Ettinger, Senior Member
13 March 2013
SUMMARY
Mr William Miller is a 58 year old TAFE teacher who was enrolled for four units of study by distance education at Southern Cross University (SCU) in first semester 2012. He had previously studied by distance education at Charles Sturt University. His evidence was that due to student numbers, his workload at TAFE increased substantially in first semester 2012.
Mr Miller said that he accordingly did not follow up the SCU commitment until he telephoned a staff member of SCU on 13 March 2012. During that conversation which he says was to inquire why he had not received any communication or course materials for the four units in which he was enrolled for the first semester, he decided to withdraw from the four units. He said that he did not know the census date had passed on 12 March 2012 when he made that call, and was under the impression census dates were similar for all institutions. He said his understanding was that for first semester, they in fact occurred towards the end of March in any given year.
Because Mr Miller withdrew from his units of study a day after the census date, he incurred a debt. He has applied to have his HECS-HELP debt remitted on the basis of special circumstances applying to his situation. SCU refused Mr Miller’s request on the basis of the tests in the Higher Education Support Act 2003 (the Act), and the Administration Guidelines 2012 (Guidelines) promulgated pursuant to section 238-10(1) of the Act.
Mr Miller has exercised his rights to appeal the decision to this Tribunal. He is the Applicant before the Tribunal, and appeared self represented, and accompanied by his wife. The Respondent was represented by Mr S Maundrell, Principal Legal Counsel, Dispute Resolution, Legal Branch of the Department of Industry, Innovation, Science, Research and Tertiary Education.
I find Mr Miller to be a witness of truth, but was not able to find that he came within the parameters for a case of special circumstances as contemplated by the Act and the Guidelines.
My reasons follow.
THE ISSUES BEFORE THE TRIBUNAL
The issues for determination by the Tribunal are whether section 36-20(1) of the Act applies to the Applicant in respect of the units for which he was enrolled at SCU in the first semester of 2012, and, more specifically, whether there are special circumstances that applied to the Applicant in order that his HECS-HELP debt can be remitted.
Determination of the issue of ‘special circumstances’ requires an assessment of whether the Applicant’s circumstances satisfy the requirements of paragraph 36-20(1)(d) and subsection 36-21(1) of the Act.
THE RELEVANT LEGISLATION AND GUIDELINES
It is not in dispute that Mr Miller was entitled to HECS-HELP pursuant to the Act, and that he has exercised his rights to appeal the refusal to remit his debt.
Sections 36-21(1) and (2) of the Act provide that:
(1)For the purposes of paragraph 36-20(1)(d), special circumstances apply to the person if and only if the higher education provider 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; and
(c) make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit.
(2)The Administration Guidelines may specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph (1)(a), (b) or (c). A decision of a higher education provider under this section must be in accordance with any such guidelines.
Section 238-10(1) of the Act provides that the Minister may, by legislative instrument, make Guidelines of various kinds. The Guidelines relevant to this matter are, as noted above, the Administration Guidelines 2012.
The purpose of Chapter 2 of the Guidelines is as follows:
3.1 PURPOSE
2.1.1The purpose of this chapter is to specify the circumstances in which a higher education provider will be satisfied that special circumstances apply to the person that:
(a) are beyond the person’s control (paragraph 36-21(1)(a) of the Act);
(b)do not make their full impact on the person until on or after the census date for the unit of study in question (paragraph 36-21(1)(b) of the Act); and
(c)make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake, the unit (paragraph 36-21(1)(c) of the Act).
CONSIDERATION OF THE CRITERIA FOR SPECIAL CIRCUMSTANCES
Were the circumstances Mr Miller faced in February/March 2012 beyond his control?
In respect to the requirement that the circumstances be beyond a person’s control the Guidelines state:
3.5 CIRCUMSTANCES BEYOND A PERSON’S CONTROL
3.5.1A higher education provider will be satisfied that a person’s circumstances are beyond that 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.
3.5.5The situation referred to in paragraph 3.5.5 [sic] must be unusual, uncommon or abnormal.
Mr Miller’s evidence regarding his situation in first semester 2012 was that it was his second year of teaching at TAFE. He said that in line with his thoughts that at his age, this was his last opportunity for a career change to become a high school maths teacher, he had made certain arrangements with the TAFE. He said that he expected, when he enrolled for four units by distance education at SCU, that he would be teaching 2 hours low level maths, 2 hours of Tertiary Preparation Certificate (TPC) Maths and 4 hours of aviation. He expected, he said, that with this workload, he could complete the four units of study at SCU.
What occurred according to Mr Miller, was that within a short time, perhaps a few weeks as far as I could discern, of the commencement of the TAFE semester on 7 February 2012, he was required to give an hour of extra tuition to students in the low level maths class. In addition, due to a reduced number of enrolments in the aviation class, it became a composite class. This required him to prepare material for eight hours, and teach the class for four hours face to face. Further, there was additional work involved in the adoption of a new syllabus and new assessment validation. That is not in dispute.
In that regard I had before me a statement of the Head Teacher, Automotive Sections of TAFE NSW Western Institute dated 3 September 2012 (Exhibit A1), in which he indicated that the term commenced on 8 February (2012). He confirmed the composite class situation in aviation due to low enrolments, and Mr Miller’s evidence regarding the syllabus and assessments.
I also had a statement by email from a representative of Vocational Access at TAFE NSW Western Institute, dated 3 September 2012 (Exhibit A2), stating that the Tertiary Preparation Certificate class commenced on 20 February (2012), and that on 29 February, Mr Miller was required to commence providing an extra hour of teaching to some disadvantaged students.
Mr Miller said that the above meant his workload had virtually doubled, he could not refuse because that would have shown ill will, and he may not have been offered further teaching. He also said that he also felt responsible to deliver the teaching as it would have been difficult, if not impossible, for the TAFE to find a substitute teacher some weeks into the first semester. He said that all those developments were all beyond his control. I am mindful however that all the above developments occurred before the census date of 12 March 2012.
By way of explanation, Mr Miller said that after his online enrolment, he heard nothing and did not receive any emails. He accordingly telephoned an officer of the SCU on 13 March 2012, to ask for course materials and other information. During the conversation with the officer, Mr Miller indicated his intention to withdraw from the four units of study for which he had enrolled. This was a day after the census date of 12 March 2012 for those units. He finally withdrew on 13 March 2012.
Mr Miller’s evidence was that the procedures at Charles Sturt University where he had previously taken online study over six years were more user friendly. He also said that he expected the census date for his SCU subjects to be sometime late in March, in line with other educational institutions about which he knew, and about which he had recently done research in preparation for the hearing before me.
I have noted, and am satisfied from the documents before me, that the offer to study in the four units was made by SCU to Mr Miller on 6 December 2011, and was sent to his home email address. The documents also indicate that Mr Miller enrolled online on 14 February 2012. Having enrolled Mr Miller was provided with login details to MySCU which provided access to course information and webmail to which emails were sent to students once they had enrolled. Such emails included relevantly, an email dated 6 March 2012 with a reminder regarding the approaching census dates.
An email at Exhibit R3, dated 2 November 2012, from the Manager Operations, Student Management Unit, Student Services at SCU, in response to a query from Mr Maundrell, advised that IT Helpdesk/Support Team indicated Mr Miller had never logged onto his webmail account or made contact with IT. Mr Miller agreed that he had not accessed his webmail account/MySCU, and had accordingly not received some of the emails.
Mr Maundrell submitted as follows:
[26] …
(a) by email dated 6 December 2011 to the Applicant (T5, f20-23), SCU sent the Applicant a formal offer to study a Graduate Diploma of Education at SCU and advised the Applicant:
(i)that he would find all the details he needed to respond to the offer and get started at SCU by going to – http// (T5, f22 and ST5, f145). From this webpage the Applicant could access relevant details in relation to ‘My Enrolment’, which is SCU’s web service allowing students to self-manage their studies, including enrolment, class registration, grades, fees, and other administrative matters;
(ii)that the Course Enrolment Guide for his course could be found at (T5, f22, ST2, f141, ST3, f142 and ST4, f143) and from that webpage the Applicant could access (and download) the document entitled ‘2012 Course Enrolment Guide – School of Education – Graduate Diploma of Education’ (‘Course Enrolment Guide’)(ST1, f97); and
(iii)of his login details to ‘My Enrolment’ (T5, f21); and
(b) by email dated 6 March 2012 to the Applicant’s student email account (T7, f24), the Applicant was advised that:
You are reminded that the Census Dates for Session 1 2012 are approaching. This means that you will be financially liable for any units in which you are enrolled at this date. Take careful note of the census dates for each unit as not all units have the same census dates – some will have a census date of 12 March 2012, while others may have a census date of 26 March 2012…
[27]… the Respondent says that if, in fact, the Applicant was unaware of the census date for the Units until 13 March 2012:
(a) the details of the census date for the Units was available at, among other places:
(i)the SCU website, which was available to the Applicant prior to the census date, at the webpage: (T23, f66);
(ii)the Course Enrolment Guide, which provided at page 2.22, under ‘General Information – Key Dates for 2012’ for Session 1, 2012 (ST1, f136):
Census Date - Check your census date in My Enrolment;
(iii)‘My Enrolment’, which, as mentioned above, was SCU’s web service allowing students to self-manage their studies (and noting that students are able to login to My Enrolment using their student number and password listed on their offer email)(ST5, f145); and
…
I am satisfied that Mr Miller was apprised of all means of obtaining information about his course from SCU following the offer made to him on 6 December 2011, and his enrolment in four units on 14 February 2012. I note further that, as he admits, he did not access the sites. He may therefore not have received certain of the relevant emails directed to him, and to other students.
I take into account that he had previously completed a part-time online degree at Charles Sturt University, and can be deemed to have been well aware of online communications between a university and its students. I accept Mr Miller’s evidence that he was just too busy with his TAFE work, and that he therefore overlooked the SCU requirements. I am also satisfied that the increased TAFE commitments arose in February 2012, well before the SCU census date of 12 March 2012.
I find, taking into account all the evidence regarding Mr Miller’s circumstances, that the circumstances he faced in February/March 2012 were not circumstances beyond his control. He simply neglected to withdraw from the SCU study units before the census date. Lack of knowledge of a census date is not a special circumstance. Accordingly, his circumstances were not unusual, uncommon or abnormal in terms of the Act or the Guidelines and do not qualify for special circumstances.
Did the circumstances Mr Miller faced in February/March 2012 not make their full impact until on or after the census date?
In respect to the requirement that the circumstances not make their full impact until, on or after the census date the Guidelines state:
3.10CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE
3.10.1A higher education provider will be satisfied that a person’s circumstances did not make their full impact on the person until on or after the census date for a unit of study if the person’s circumstances occur:
(a)before the census date, but worsen after that day; or
(b)before the census date, but the full effect or magnitude does not become apparent until on or after that day; or
(c)on or after the census date.
As noted above, Mr Miller’s evidence, and that of the authors of Exhibits A1 and A2, satisfy me that the increased teaching and workload Mr Miller faced in first semester 2012, was well established during February 2012. The circumstances he faced in February 2012 had made their full impact prior to the census date of 12 March 2012.
Did Mr Miller face circumstances in February/March 2012 which made it impractical for him to complete the requirements for his units of study at SCU?
In respect to the requirement that the circumstances make it impractical for the person to complete the requirements for the units of study the Guidelines state:
3.15CIRCUMSTANCES THAT MAKE IT IMPRACTICABLE FOR THE PERSON TO COMPLETE THE REQUIREMENTS
3.15.1A higher education provider will be satisfied that a person’s circumstances make it impracticable for the person to complete the requirements for the unit of study during the period which the person undertook, or was to undertake, the unit if circumstances such as the following occur:
(a)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; or
(b)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; or
(c)employment related circumstances. For example, where a person’s employment status or arrangements have changed so that the person is unable to continue his or her studies, and this change is beyond the person’s control; or
(d)course related circumstances. For example, where the provider has changed the unit it had offered and the person is disadvantaged by either not being able to complete the unit, or not being given credit towards other units or course.
A person is unable to complete the requirements for a unit if the person is unable to:
(a)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
(b)complete the required assessable work; or
(c)sit the required examinations; or
(d)complete any other course requirements because of their inability to meet (a), (b) and (c) above.
Mr Miller’s evidence which I accept, was that he could not have completed four units of study at SCU given his increased workload at TAFE in first semester 2012. I am not required to canvas this last issue further as I have already, in the paragraphs above, noted I am satisfied that pursuant to sections 36-21(1)(a) and (b), Mr Miller cannot succeed in establishing that his late withdrawal from courses at SCU were beyond his control, or that the circumstances he faced in February 2012 had not made their full impact until on or after the census date.
CONCLUSION
I have considered Mr Maundrell’s submissions in regard to remission of HECS-HELP. He referred me to cases decided by the Tribunal in this area of law. Each case turns on its facts, including the present one. However, general principles apply such as that a lack of knowledge of census dates when they were clearly spelled out in SCU electronic communications to students, do not satisfy the requirements of beyond control of a reasonable person such as Mr Miller.
I find that special circumstances, as contemplated in section 36-20(1)(d) and section 36-21(1) of the Act do not apply to the Applicant as he is not able to satisfy the requirements of paragraphs 36-21(1)(a) and (b) of the Act.
I therefore find that section 36-20(1) of the Act does not apply to the Applicant.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of .............[sgd]...........................................................
Associate
Dated 13 March 2013
Date of hearing 28 February 2013 Applicant In person Solicitor for the Respondent Mr S Maundrell, Principal Legal Counsel, Dispute Resolution Team, Legal Branch, Department of Industry, Innovation, Science, Research and Tertiary Education
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