Williams and Secretary, Department of Education
[2024] AATA 2920
•15 August 2024
Williams and Secretary, Department of Education [2024] AATA 2920 (15 August 2024)
Division:GENERAL DIVISION
File Number: 2023/2363
Re:Laura Williams
APPLICANT
AndSecretary, Department of Education
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:15 August 2024
Place:Hobart
Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
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Senior Member D. J. Morris
Catchwords
EDUCATION AND RESEARCH – higher education assistance – where applicant in receipt of HECS-HELP assistance – where applicant failed certain academic units – where applicant sought re-credit of HECS-HELP balance on grounds that special circumstances applied – where university declined to re-credit HECS-HELP balance – review by Tribunal – consideration of special circumstances – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Higher Education Support Act 2003 (Cth)
Cases
Montenegro v Secretary, Department of Education [2020] FCAFC 210
Ullah and Secretary, Department of Education and Training; Re: [2018] AATA 2159
Secondary Materials
Higher Education Support (Administration) Guidelines 2022 (Cth)
REASONS FOR DECISION
Senior Member D. J. Morris
15 August 2024
The Applicant, Ms Laura Williams, was a student at Monash University (‘Monash’). In 2022, she was studying two degrees concurrently – a Bachelor of Engineering (Honours) degree and a Bachelor of Biomedical Science degree. She was in receipt of HECS-HELP assistance.
In 2022, Ms Williams enrolled in four units to be studied in semester 1, and four units to be studied in semester 2. In that year, semester 1 commenced on 28 February and ended on 27 May. Semester 2 commenced on 25 July and concluded on 21 October.
On 30 April 2022, Ms Williams was involved in a car accident. She was not physically hurt but her vehicle was damaged.
In relation to her academic progress in semester 1 of 2022, Ms Williams successfully passed the following subjects: Biomedical Chemistry; Engineering Design; Foundation Mathematics. She received a failing mark for the subject of Engineering Smart Systems.
In semester 2, Ms Williams was enrolled in the following subjects: Molecular Biology; Engineering Maths; Engineering Methods; and Engineering Numerical Analysis. The last date for the Applicant to withdraw from the units in semester 2 was 31 August 2022. This is called the ‘census date.’ If an enrolled student does not withdraw by the census date, the student incurs a HECS-HELP debt immediately after the census date.
On 17 September 2022, the Applicant was involved in another car accident that caused further damage to her motor vehicle.
Semester 2 ended on 21 October 2022. Ms Williams did not withdraw from any of the four units before the census date and received a failing mark for each.
On 15 December 2022, the Applicant submitted a Special Circumstances Fee Reversal form in respect of these four failed units. This form is taken to be an application for HECS-HELP re-credit pursuant to s 97-25(2) of the Higher Education Support Act 2003 (‘the Act’). Ms Williams provided a statement and a statutory declaration date 18 May 2022 about the April 2022 car accident.
On 19 December 2022, Monash refused Ms Williams’ application for HECS-HELP re-credit. This is the original decision. Monash stated in its decision record:
…the full impact of your special circumstances were known to you prior to the census date; as such, you do not meet the criteria for special circumstances. In your statutory declaration you state that your car accident occurred on 29-Apr-2022, which is approximately 3 months prior to the start of Semester 2. There is no evidence that your mental health significantly and unexpectedly deteriorated after the census date, and made it impracticable for you to complete unit requirements.
On 3 January 2023, Ms Williams asked for an internal review of the original decision, pursuant to s 209-10 of the Act. On 15 January 2023, the Applicant sent Monash further details about her claimed circumstances. She also set out additional elements in her claim that special circumstances applied, namely financial hardship, family medical stress, the impact of the COVID-19 pandemic, lack of support from teaching assistants and long-term grief. She provided additional documents in support of her claims.
Subsection 209-10(6) of the Act provides that a reviewer is taken to have confirmed the original decision if the reviewer does not give notice of a decision to the person within 45 days after receiving the person’s request. Monash did not give the Applicant notice of the outcome within the 45-day period, which ended on 17 February 2023; as such, a deemed confirmation of the original decision occurred. Notwithstanding, on 13 March 2023, Monash released a decision that confirmed the original decision.
On 5 April 2023, Ms Williams applied to the Tribunal for review of the review decision.
The Respondent submitted that, for the purposes of the Tribunal hearing, the Secretary of the Department of Education considers that the decision under review is the review decision of 13 March 2023, which was submitted should be treated as an ‘own motion’ reconsideration of the original decision pursuant to s 209-5 of the Act, rather than the deemed review decision which was deemed to have occurred on 17 February 2023.
What is the decision before the Tribunal?
There is an unfortunate aspect of the way Monash handled this matter. The Tribunal agrees with the Respondent that the effect of s 209-10(6) of the Act is that, if a person seeks review and the reviewer does not give notice of a decision to the person within 45 days after receiving the request for review, it is deemed that the decision the subject of the review is confirmed. That happened in this case, because Monash did not provide a notice of a decision to Ms Williams within the requisite period. However, s 209.10 of the Act notes that s 27A of the AAT Act requires that the person be notified of their review rights. Clearly, that does not happen when a decision is ‘deemed’ to have happened by the expiry of the 45-day period.
Therefore, the better view in this case is that the decision which is the subject of the review is the decision record emailed to Ms Williams on 13 March 2023. It was out of time, but it does set out her rights of review to this Tribunal. It is sloppy administrative practice for the institution to handle requests for review in this way.
When Ms Williams lodged her request for remission of her debt, she received an email from Monash which inter alia stated (TD, p 97):
Once you receive an outcome of your application
If you are dissatisfied with this decision regarding the remission of the debt, you may apply within 28 days of the decision (or the date on which the Review Officer is taken to have confirmed the original decision) to the Administrative Appeals Tribunal for an external merits review…
But this is ‘cart before horse.’ This paragraph seeks to satisfy the Parliament’s requirement in s 209.10 that a person must be advised they can apply to the AAT for review, but tells the person they can apply without having any actual review decision or decision record.
The Tribunal accepts that the institution may have to deal with significant numbers of such applications, but this seems to be procedurally unfair. It is also misleading, because a person has not ‘received an outcome’ of their application if the outcome has come about automatically by the effluxion of time, and not through the actions of a decision-maker exercising an independent discretion, purely because the timeframe for the internal review has expired.
Therefore, the Tribunal agrees with the Respondent that the proper decision to consider in this matter is the decision record of 13 March 2023.
HEARING
A hearing took place by video link, as is permitted under s 33A of the AAT Act, on 28 June 2024. The Applicant represented herself and made submissions. She was cross-examined by Mr Myles Norris, a legal officer with the Department.
The Tribunal took into evidence the following documents:
(a) Volume of documents lodged under s 37 of the AAT Act (‘TD’) – Exhibit R1;
(b) Volume of supplementary documents (‘ST’) – Exhibit R2;
(c) Web page screenshot titled ‘Unit pass rate change – Monash’ – Exhibit A1;
(d) Web page screenshot titled -Unit pass rate rule change in legislation’ – Exhibit A2;
The Respondent also submitted a Statement of Facts, Issues and Contentions and a list of authorities.
OPENING SUBMISSIONS
Ms Williams said she understood the Respondent’s submissions, but she believed that special circumstances are relevant in her case because of her car accident, pre-existing family difficulties, mental health and financial situation which made it impossible to complete her studies in the relevant period.
Mr Norris submitted that the Applicant enrolled at Monash from 18 January 2022 for the two semesters of that year. He noted that the Applicant was in a car crash in April 2022 where her car was damaged, but she was not injured. He noted that in semester 1 of 2022, Ms Williams passed three subjects and did not pass one. Mr Norris noted that semester 1 is not the relevant period that is before the Tribunal.
Mr Norris said the Respondent understands the Applicant is contending that the full impact of her car accident did not manifest until 31 August 2022, and that the full impact comprised the following elements: the car accident in April 2022; family circumstances relating to Ms Williams’ sister’s health and ongoing grief; financial circumstances; and course-related circumstances relating to a lack of support from academic staff.
Mr Norris submitted that for a re-credit of Ms Williams’ HELP balance to occur, under s 97.25(2)(c) of the Act, the provider (or the Tribunal, standing in the shoes of the decision-maker) must be satisfied that special circumstances apply and that the requirements of s 97.30 of the Act, which set out how ‘special circumstances’ are to be characterised, must be satisfied in full.
Mr Norris said that Ms Williams’ circumstances were known to her before the relevant period, and in particular the April 2022 car accident occurred three months before semester 2 commenced. He submitted that, to the extent there were any residual effects of that car accident, they were not ‘unusual.’ In respect of the Applicant referring to the deaths of her father and grandfather, the Respondent also said that these sad events were also known to her prior to the relevant period.
Mr Norris cited the Tribunal in Re: Ullah and Secretary, Department of Education andTraining [2018] AATA 2159 at [36] where the learned Member found certain difficulties facing an applicant made it more difficult to succeed in his academic studies, but they did not make it impracticable for him to continue. The Respondent contended, in this case, that it was not ‘impracticable’ for Ms Williams to continue with her studies, noting that she continued to undertake regular casual employment, complete assignments, drive to and from the university campus and drive her sister, as necessary, to medical appointments.
ORAL EVIDENCE
The Applicant was asked about the April 2022 car accident. She said she was driving a vehicle late at night, it was raining, and the steering of the vehicle mechanically failed. She said she was frightened, and the failure caused her to drive over a gutter and into a fence. She said she was not physically injured but sustained some bruises. The police attended and her vehicle was towed. She believed the crash happened either on 30 April or 1 May 2022, it was very late at night so it could have been after midnight.
Mr Norris referred to notes of a psychologist dated 12 January 2023 (ST, p 271) which referred to a ‘May accident’. Ms Williams said she suffered some general confusion about what the actual day of the accident was.
Ms Williams was asked about the immediate effect on her studies in semester 1 of 2022. She responded, “I had one assessment pretty soon after. I applied for special consideration and supplied a statutory declaration. I struggled that first week. It was pretty much exams, so I was mostly at home. I couldn’t drive myself because the car was damaged. I got lifts with my mother or used public transport.”
Mr Norris asked if she experienced any psychological impacts from the accident. Ms Williams responded, “It was shocking. I struggled to process. The mechanical failure led me to question whether it was my fault or not. I had an immediate emotional response.”
The Respondent asked if the Applicant experienced a lack of confidence in driving after the April crash. Ms Williams responded, “I wasn’t driving except to the shops and back. I was not driving to uni.”
Mr Norris asked if there were any immediate financial impacts. Ms Williams responded, “There was the cost of the insurance claim. I only had third-party insurance, so the repairs were not covered, nor the tow truck fees. I paid the tow truck on the night, which was $500. The claim for excess was paid on 23 June. The repairs for the vehicle were paid in May, June, July.”
Mr Norris referred to a document at ST, p 244 about repairs to a Holden Commodore utility. Ms Williams responded, “That document was created for the mechanic, for the purpose of knowledge of what happened to the vehicle. It is not a solid timeline.”
Mr Norris asked if there was any evidence of costs after 31 August 2022, the census date. Ms Williams responded, “No. I haven’t provided those. In regard to the accident in September, the car still hasn’t been fixed.”
Ms Williams said she was unable to use her car from the beginning of May to the end of June, whilst it was being repaired. During this time she travelled to her work either by public transport or through lifts from her mother. She said she drove her mother’s car to the local shops ‘once or twice.’ She said at this time she found balancing work and study ‘pretty difficult’ because she was asked to take on additional responsibilities.
The Applicant agreed with Mr Norris that her financial pressures at this time also applied to her circumstances in semester 1 of 2022 as well. She said her work had a negative impact on her academic performance in semester 1, which meant she was only able to pass three of the units instead of four. Ms Williams said that during semester 1 her hours of casual work fluctuated from, at the beginning of the semester, doing between 10 and 15 hours, and by the end she was working about 25 hours a week. She said her employer asked her to pick up more shifts at the hospitality venue where she did casual work.
Mr Norris asked Ms Williams whether the April car accident affected her academic progress. She responded, “No, because there were no emotional or traumatic [effects] until I started driving again.”
The Tribunal asked Ms Williams whether she was questioning whether the accident was her fault. She responded, “When I say that it wasn’t so I couldn’t concentrate.”
Mr Norris asked when the April car accident made its full impact. Ms Williams responded, “When I had my second accident in September 2022. That’s when the full impact hit. Before that, it was manageable, then the second accident occurred, and I found it was not manageable.”
Ms Williams said in May 2022 she was suffering medical implications and shock, and questioning her ability to control a motor vehicle. She said she experienced general anxiety around cars. She told the Tribunal that her fear of driving continued until late May.
Mr Norris put to Ms Williams that the full impact of the April car accident was in May 2022. She responded, “I don’t believe that is correct.”
The Respondent referred to clinical notes of a psychologist dated 6 July 2023 where the psychologist wrote ‘report stating how being in a car accident has gotten [sic] worse over time – proof of circumstances – impact – general anxiety from driving.’ Mr Norris asked what the Applicant thought had ‘got worse.’ Ms Williams responded, “This is referring to my mental capacity. I experienced increased stress about being on the road and my confidence in driving got worse in the end of July 2022.” Mr Norris asked if the Applicant was saying there was a continuous line from April to July 2022, and then it got worse, and Ms Williams responded, “Yes.”
The Applicant said she found it difficult to drive in August 2022, but she made it work because her anxiety was manageable, but she was experiencing general panic and stress prior to the census date.
Mr Norris asked if Ms Williams stopped attending university in semester 2. She responded, “In the first five weeks of the semester, I attended. After that it dropped significantly. Some classes are on-line. Due to the second car accident, I chose to do the majority of the classes I could on-line, where possible.” She added that where it was not possible, she “tried my best to make it to uni. It was not always possible. Once or twice I wouldn’t attend the practical classes.”
Ms Williams then clarified that she probably did not attend five practical classes, but went to the majority. She told the Tribunal in response to a direct question that most of her classes had attendance marks as pass requirements.
Ms Williams was asked whether she informed the lecturers about what she was doing. She responded, “No. I was finding it difficult with the emotions I was experiencing.” She agreed that it was within her control to approach her lecturers.
She said at this time she had stress about driving with other people. She said her mother occasionally drove her, but she took public transport to university and to work at the time “in some cases I found it manageable; in most cases I didn’t.”
Mr Norris asked if Ms Williams was driving her sister to her commitments at the time. She replied, “Very few. Related to her working about two kilometres down the road. Only if there was no one else to take her.” She said that her sister at the time was 17 and on a learner’s permit.
Mr Norris noted that the Applicant had said she was often required to drive her sister (TD, p 99) and asked how often. Ms Williams responded, “When I said often, it was variable. Sometimes three times a week, next week none, next week once.”
She said she drove herself to university at this time, sometimes got a lift with her mother, or sometimes took public transport. In regard to whether it affected her work, she told the Tribunal she asked to work fewer shifts but longer hours, thereby requiring less travel.
Mr Norris asked the Applicant about whether she found the degrees she was studying challenging. She responded, “It was incredibly difficult to interpret the content from some of the professors. I had to use on-line sources and textbooks. It was not difficult once I could understand what they are trying to explain.”
Mr Norris referred to a statutory declaration dated 23 October 2023 (ST, p 249) which states:
On the 17th of September 2022, I was in a car accident-causing damage to my vehicle and causing mental implications at no fault of my own.
He asked the Applicant to tell the Tribunal the circumstances of the September car accident. She responded, “A neighbour’s car was parked across the driveway. They were parked illegally. I hit their car. There was no damage to their car but there was damage to mine.”
Mr Norris asked if it was just a ‘tap.’ Ms Williams responded, “More of a bump.” She said the neighbour had parked about a metre over her driveway and she was not aware they were there because it was in her blind spot as she reversed down. She agreed that, compared with the April 2022 crash, this was a minor accident.
She added: “Although it was not a severe accident like April, it really caused a lot more emotional struggles to emerge. My confidence in driving. Anxiety. Other drivers on the road. It reinforced my fears about driving.”
There was a third accident referred to in November 2022, but Ms Williams agreed that was outside the relevant study period.
Mr Norris referred to the clinical notes taken in January 2023 (ST, p 271) and asked why the psychologist had not recorded the September car accident. Ms Williams responded, “I didn’t believe it was a cause, as such. I believe I did mention it to her quite a bit later. I wasn’t quite aware it was something making stress worse. I didn’t realise it was a contributing factor, but the general cause of my symptoms was from the April accident.”
The Respondent asked Ms Williams what had caused her to focus on the September 2022 car accident, when it was not previously mentioned. She responded, “I realised it was somewhat of a contributing factor. My symptoms had worsened. I wasn’t aware when talking to a psychologist and CBT to mention it. I was answering questions, not giving an entire recap.”
Mr Norris put to Ms Williams that if she genuinely believed the full impact occurred as a result of the September accident, she would have mentioned it to her psychologist. She said, “I am unable to make comments on how the psychologist wrote things down, or chose to write them down. I believe I did mention it.”
At TD p 89 in her claim for special circumstances consideration, there was only reference to the April accident. Ms Williams responded, “There were character limits. I felt I should focus on the most impactful factor.”
Ms Williams agreed with Mr Norris that the most impact on her was the April car accident. She said other factors contributed “in a compounding way, ‘adding on’.”
Ms Williams confirmed she did not see any medical practitioner in semester 2 of 2022.
Ms Williams agreed that she attended all the exams and completed all the assignments she was set, and studied throughout the study period.
When asked when her father and grandfather died, Ms Williams told the Tribunal that her father died in 2015 and both her grandfathers died in 2018 and 2019. She said she has been affected by long-term grief. She said her father and both of her grandfathers had engineering backgrounds. She agreed with Mr Norris that grief is not an uncommon or unusual emotion to experience.
The Respondent referred to a medical discharge form relating to the Applicant’s sister which was dated 9 February 2022 (TD, p 104). Ms Williams said that was the first notice she had of her sister’s medical condition, and she had further surgery in November 2022 (TD, p 108).
When asked about how her financial circumstances were affected during the relevant period, Ms Williams responded, “You can see from my pay slips there was a notable decline in my hours of work. There was the cost of the accident. Struggling to keep up to date. I experienced a lack of income. I had no savings due to the accident.”
Ms Williams agreed that she received support from her mother in terms of accommodation and meals. She agreed that the cost of the April car accident repairs was known before the census date, but she was not aware that her casual work hours would be decreasing. She told the Tribunal that she had not been able to purchase a laptop computer that met the CAD software capabilities required for semester 2 subjects, which she did not need for semester 1 subjects in 2022. She said she made do with what she had.
Ms Williams was asked about the lack of support from teaching staff. She responded, “That is more related to practical support during class. The teaching assistants made no conscious efforts to help when they were asked. They were unprepared in their teaching. I often asked for help and received no assistance. They were very young, often students themselves.”
She said some of the professors required that students watched pre-recorded lectures and sometimes there was a language or accent barrier, so it was hard to follow what they were saying. When asked if she emailed the professors, she said she did not because the students are told to contact ‘forums’ before approaching a professor, and it was hard to book a time.
Mr Norris put to the Applicant that if the April accident truly had an impact, she would not have been able to drive to university and for her sister. She responded, “I was able to make some things practicable to do. I found uni practicable. I had family responsibilities and the ability to financially survive. After September, I could not complete to the best of my abilities. I needed to work to be able to attend uni. If I don’t have money, I can’t.”
Mr Norris said that if it was medically impracticable, then it was also medically impracticable for her to go to work in the relevant period. Ms Williams responded, “I don’t agree. I couldn’t complete to the best of my abilities.”
CLOSING SUBMISSIONS
Ms Williams said that her circumstances were extraordinary and beyond her control. She said the April car accident was traumatic, and manifested over time. It was not an extension of existing conditions. She said she incurred additional financial costs, and an escalation of anxiety, and the cumulative impact presented a unique set of circumstances which means she was not able to complete her course.
Ms Williams told the Tribunal she had recently been awarded a prize as ‘Most improved mechanical engineer.’ She said she had attempted to maintain normalcy at the time and urged the Tribunal to consider the full scope of her situation, the accident and the aftermath, which were beyond her control.
The Respondent submitted that the question before Tribunal related to semester 2 of 2022. He submitted the Tribunal needs to be satisfied of three questions: was the Applicant’s situation beyond her control; did the claimed circumstances make their full impact on or after the census date; and did the circumstances make it impracticable for Ms Williams to complete the requirements of her units.
Mr Norris submitted that ‘impracticable’ means not able to be done and is a high threshold to meet, and that if the Applicant did not meet one of the criteria, the Tribunal must decline to find that special circumstances are applicable.
In respect of the April 2022 car accident, Mr Norris noted that the Applicant said it was shocking to her and caused immediate stress in a continuous line that continued to the end of July 2022. He submitted that the Respondent therefore contended that the impact was not until after the census date.
In respect of practical impact, the Respondent noted that Ms Williams could catch a bus, or be driven by her mother, and that she drove sometimes to the shops at this time. He said, in respect of her casual work, this was known to her in semester 1 of 2022 so it was not uncommon or abnormal to her that she knew she had to balance work and study. In respect of the financial impacts, these were also known before the census date.
Mr Norris said, in respect of the September 2022 car accident, the Applicant conceded it was minor, she bumped into a car parked across her driveway. In respect of family circumstances, Mr Norris submitted that the deaths of the Applicant’s father and grandfathers was not an uncommon experience, and her sister’s illness was also not an ‘uncommon’ circumstance.
In respect to the Applicant’s criticisms about study support from Monash, Mr Norris noted that these appeared to be pre-existing, and the Applicant could have contacted her professors, if she were dissatisfied with the help she was receiving from teaching assistants.
LEGISLATIVE REGIME
If a person’s HELP balance is credited under Div 97 of the Act, his or her HECS-HELP debt in relation to a unit of study is taken to be remitted. Section 97-25(2) of the Act is relevant in Ms Williams’ case, because it provides for the re-crediting of a HELP balance with an amount equal to the amounts of HECS-HELP assistance a person has received in respect of a unit of study in special circumstances:
(2)A higher education provider must, on the Secretary’s behalf, re-credit a person’s HELP balance with an amount equal to the amounts of HECS-HELP assistance that the person received for a unit of study if:
(a)the person has been enrolled in the unit with the providers; and
(b)the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit; and
(c)the provider is satisfied that special circumstances apply to the person (see section 97.30); and
(d)the person applies in writing to the provider for re-crediting of the HELP balance; and
(e)either:
(i) The application is made before the end of the application period under section 97-35; or
(ii) The provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.
The term ‘special circumstances’ are not defined in the Act but are characterised in s 97-30 as follows:
Special circumstances
(1)For the purposes of paragraph 97-25(2)(c), 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.
(2)If the Administration Guidelines specify circumstances in which a higher education provider will be satisfied of a matter referred to in paragraph 36-21(1)(a), (b) or (c), any decision of a higher education provider under this section must be in accordance with any such guidelines.
Note: The matters referred to in paragraphs 36-21(1)(a), (b) and (c) (which relate to special circumstances that apply to repaying an amount of student contribution or HECS-HELP) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.
The term ‘census date’ is defined in Sch 1 of the Act to mean, relevantly in the case of the Monash units Ms Williams was studying, a date ascertained under s 169-25 and published by the provider. The census date for each of the four units was 31 August 2022.
Therefore, the task of the Tribunal is to decide, standing in the shoes of the decision-maker, whether special circumstances apply to Ms Williams to re-credit her HECS-HELP balance in relation to the units she was studying in semester 2 of 2022 where the census date was 31 August 2022.
The Tribunal must decide whether the ‘special circumstances’ were beyond Ms Williams’ control; whether they did not make their full impact on her until 31 August 2022 or after that date; and whether those special circumstances made it impracticable for her to complete the requirements for the units.
Although, as I say, the term special circumstances is not defined in the Act, s 97-30(2) which requires the Tribunal to apply any specificity in Administration Guidelines that may be applicable at the time (see the decision in Montenegro v Secretary, Department ofEducation [2020] FCAFC 210). To that extent, they are not accurately described as Guidelines for decision-makers as they stipulate in quite a detailed manner how each of the conjunctive requirements in s 97-30(1) must be interpreted.
The applicable Administration Guidelines are the Higher Education Support (Administration) Guidelines 2022 (Cth) (‘the Guidelines’). Part 3 of the Guidelines state:
12 Circumstances beyond a person’s control
(1)For the purposes of paragraphs 36-13(a) and 36-21(1)(a) of the Act, a higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which the provider reasonably considers is not due to the person’s action or inaction, either direct or indirect, and for which the person is not responsible.
(2)The situation referred to in subsection (1) must be unusual, uncommon or abnormal.
13 Circumstances that did not make their full impact until on or after the census date
(1)For the purposes of paragraphs 36-13(3)(b) and 36-21(1)(b) of the Act, a 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 date;
(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.
14 Circumstances that make it impracticable for the person to complete the requirements
(1)For the purposes of paragraphs 36-13(3)(c) and 36-21(1)(c) of the Act, a 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 if the person undertook, or was to undertake, the unit in the following kinds of circumstances:
(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;
(b)Family or 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;
(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 [sic].
(2)The requirements for a unit of study referred to in subsection (1) are that the person:
(a)Undertakes the necessary private study required, or attends sufficient lectures or tutorials or meets other compulsory attendance requirements in order to meet their compulsory course requirements;
(b)Completes the required assessable work;
(c)Sits the required examinations; or
(d)Completes any other course requirements.
CONSIDERATION
The Applicant in her opening submission listed the following factors that she submitted meant special circumstances applied: her car accident (by which the Tribunal takes to mean the April 2022 car accident); pre-existing family difficulties; mental health; financial circumstances. The Tribunal will add to these, in fairness, her other submission about lack of teaching support, which would fit into the category of course-related circumstances. I will deal with each of these in turn.
The impact of the April 2022 car accident
The Tribunal accepts the oral evidence of Ms Williams, supported by other papers before it, that she was involved in a car crash either on 30 April 2022 or very early the following morning, 1 May 2022. As the authority to tow record is dated 30 April 2022 (ST, p 220) it is likely the actual crash occurred late on that day. Her car had a steering failure, causing her to drive over a gutter and into a fence. It would seem on the evidence that this crash was not Ms Williams’ fault or due to any driving negligence on her behalf.
The Tribunal accepts that the car accident was beyond her control, and the fact of her car having to be off the road and under repair hampered her ability to get to the Monash campus. She had to rely on public transport and, sometimes, a lift. However, on her own evidence she did not miss many lectures and continued to attend classes and tutorials, as well as undertake her private casual employment.
However, the April 2022 car accident occurred around the middle of semester 1 of 2022. It may well have had an impact on her study in that semester, but I note Ms Williams successfully completed three units in that semester. The questions before the Tribunal relate to semester 2, which did not commence until 25 June 2022, and particularly hinge on what was happening at the time of the census date, 31 August 2022.
By that time, Ms Williams’ car had been repaired and was back on the road. The Tribunal accepts that there was some impact of the April 2022 crash; it affected the Applicant’s driving confidence, and rattled her in terms of her confidence in the ability of other drivers. But Ms Williams said that the effects on her mental equilibrium occurred in the immediate aftermath, which was well before semester 2 commenced. To that extent, I do not find that any residual impact was unusual, abnormal or uncommon. That is, on the evidence, there was no sudden onset of a change in her mental health.
For completeness, the Tribunal notes that there were two further minor car accidents involving the Applicant. The second was on 17 September 2022 where she said she ‘bumped’ a neighbour’s car which was partly across her driveway, as she reversed out. By itself, this was a minor bingle, although I accept Ms Williams’ evidence that the other car was not damaged, but hers was. However, the Tribunal can see that with the backdrop of the April 2022 car accident, which the Applicant agreed was more severe, even a minor collision like that might sap driving confidence. However, this accident does not assist the Applicant in terms of prolonged effect, or exacerbation, because it was not recorded by her psychologist in the clinical notes and there is a paucity of material about it. In terms of the third accident in November 2022, that is after the study period, so it is not relevant in this consideration.
Pre-existing family difficulties
The Tribunal accepts the Applicant’s evidence about the long-term effect of the early death of her father in 2015. That must have been a great blow to her, her sister and her mother. The Tribunal also accepts that, as both of her grandfathers and her father were involved in different ways in the engineering world, this is what steered her in that direction, and she laments not having them to provide advice and to be able to talk to them about her studies. However, she told the Tribunal that her grandfathers died, respectively, in 2018 and 2019. So while the Tribunal accepts that there may well be an element of long-term grief, this cannot be said to be something that came suddenly; it was not unusual for Ms Williams, and in fact existed before she embarked on her university studies.
In respect of her sister’s health challenges, the Tribunal accepts that she has been supportive and would take her sister to appointments at the relevant time. But, again, in her own evidence she said that this was a health condition known to her since at least February 2022, not something that manifested suddenly in respect of affecting her study.
Mental health
The Tribunal had before it clinical notes of Dr Tatyana Rodinov, general practitioner. Dr Rodinov first saw Ms Williams on 12 January 2023 (ST, p 269). Dr Rodinov recorded the three reasons for the initial consultation were ‘stress and coping with university, past grief and trauma, MVC accident (mechanical failure).’ Dr Rodinov referred to a car accident in ‘May [sic] 2022’ and that this was the first time the Applicant had seen a psychologist. Dr Rodinov referred the Applicant to see Ms Martha Panagiotopoulos, psychologist, under a mental health plan, on the same date and, in her referral letter (ST, p 287) noted a family history of depression and anxiety and that the Applicant’s father died of pneumonia when Ms Williams was aged 12.
Dr Rodinov did not see the Applicant until January 2023 and the historical aspects she refers to predate the study period in question. Other parts of the clinical notes obtained under summons reflect that the Applicant had continuing side effects from the April 2022 car accident in terms of anxiousness when driving and being unsure of other drivers, either when a passenger or other motorists around her. However, all of these factors as reported in the medical evidence were known to the Applicant either for a long period, or were in place before the study period, and there is no evidence before the Tribunal that they did not make their full impact before the census date of 31 August 2022.
Financial circumstances
Ms Williams’ referred to the financial situation of the family household. Her mother is a widow and in receipt of family tax benefits A and B, but there is only one parental income to support the family unit. The Applicant wrote about her casual work, and gave evidence about taking longer and more shifts. The Tribunal accepts that sometimes her casual work had to be juggled with her study requirements, but this is a common factor with many students and, in her case, was not something that arose unexpectedly in semester 2 of 2022. The Tribunal accepts that Ms Williams’ causal employment shifts fluctuated, but they did so over an extended period, so this factor in her work at the hospitality venue would not have been something unexpected.
In respect of the additional costs for repair of her car after the April 2022 car accident, the evidence before the Tribunal is that the insurance claim lodged in relation to the crash had been resolved and she had paid the relevant excess fees on 23 May 2022 (ST, p 241), which was before the study period.
In her written timeline summary of mechanical and other work done on her car (ST, p 241), Ms Williams wrote about the work done on the car in May 2022 and then wrote ‘Car fixed by end of July 2022’. This was before the study period.
I do not find any evidence of financial circumstances that were unusual or unexpected in terms of the census date. In saying that, I completely accept that Ms Williams faces financial strictures and challenges, but these were things that were known to her at the time.
Course-related circumstances
Ms Williams told the Tribunal about the lack of support she felt she received from some of her teaching assistants. The Tribunal interpreted this as general evidence and noted that she agreed she did not contact any of the lecturers to express her concerns, even though she had opportunities to do that. She did not particularise these criticisms any further in her oral evidence other than making broad statements about difficulties with the accents of some lecturers when listening to taped lectures. There was no evidence before the Tribunal that something happened in the study period, which was different from semester 1 of 2022, when I note the Applicant successfully passed three of the four units she was studying.
The Tribunal notes that, in her oral evidence, Ms Williams confirmed that in the study period she attended all her examinations, she completed all her assignments, and she did not interrupt her study. She believed that she attended the majority of the practical classes she had to attend, but missed ‘approximately five.’
SUMMATION
As mentioned above, s 97-31(2) is conjunctive, in that each element must be satisfied for special circumstances to apply. The Tribunal is not satisfied that Ms Williams has made out a case for re-credit of her HECS-HELP balance on the basis that special circumstances applied to her in semester 2 of 2022, which made their full impact on her on or after 31 August 2002 or made it impracticable to complete the requirements of the units she was studying that semester. In fact, she did complete the units. Her argument is that she did not complete them to the best of her ability, which is why she did not pass. But that is a different thing.
In coming to that conclusion, it should not be interpreted that the Tribunal regarded Ms Williams as other than a truthful witness who has faced a number of particular challenges in terms of her family life, the April 2022 car accident, and balancing work with her academic studies.
The Tribunal notes her advice at the end of the hearing that Ms Williams more recently received an award for her academic progress; it is to be hoped that she is back on track with her studies. When the Tribunal was at university there were only two women studying engineering in the whole faculty. It is great to see how much that situation has changed.
However, the outcome of this merits review is that the Tribunal will affirm the decision under review. The evidence does not support a finding that special circumstances applied in the Applicant’s case in terms of s 95.25(2)(c) of the Act.
DECISION
Pursuant to s 43(1)(a) of the AAT Act, the reviewable decision is affirmed.
I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
............................[SGN]............................................
Associate
Dated: 15 August 2024
Date of hearing: 28 June 2024 Applicant: Self-represented Advocate for the Respondent: Mr Myles Norris Solicitors for the Respondent: Department of Education, Legal Branch
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