Yu and Secretary, Department of Education
[2024] AATA 818
•23 April 2024
Yu and Secretary, Department of Education [2024] AATA 818 (23 April 2024)
Division:GENERAL DIVISION
File Number(s): 2023/3438
Re:Ken Yu
APPLICANT
AndSecretary, Department of Education
RESPONDENT
DECISION
Tribunal:Mr A Maryniak KC, Member
Date:23 April 2024
Place:Melbourne
The Tribunal affirms the decision under review.
................................[SGD]........................................
Mr A Maryniak KC, Member
Catchwords
EDUCATION – HECS-HELP – debt remission – whether special circumstances apply – whether circumstances beyond applicant’s control – whether circumstances made it impracticable for applicant to complete requirements of course – where applicant enrolled in full-time course load of four units – where applicant satisfied three of the four units – where applicant seeks remission for unit not satisfactorily completed – applicant experience of mental health challenges during period – Tribunal not satisfied impracticable for applicant to complete requirements of units – decision affirmed.
Legislation
Higher Education Support Act 2003 (Cth)
Cases
Zabaneh and Secretary, Department of Education and Training [2016] AATA 569
Secondary Materials
Higher Education Support (Administration) Guidelines 2022 (Cth)
REASONS FOR DECISION
Mr A Maryniak KC, Member
23 April 2024
The Applicant seeks review by the Administrative Appeals Tribunal, of a decision of a delegate of the Respondent not to re-credit his HECS-HELP debt, pursuant to section 212-1 of the Higher Education Support Act 2003 (Cth) (‘the Act’).
The background to this Application is set out in the Respondent’s Statement of Facts, Issues and Contentions dated 25 January 2024, essentially accepted by the Applicant and for convenience is repeated below:
5. The applicant was diagnosed with schizophrenia in or around 2011 (T6, 31). The applicant was also diagnosed with Autism Spectrum Disorder, without accompanying intellectual impairment of Level 1 severity in 2019 (T6, 42).
6. The applicant commenced university studies at Deakin in 2021 (T39, 184). The applicant requested a Commonwealth supported place and a HECS-HELP loan for a Bachelor of Laws in January 2021 (T9, 68-70).
7. The applicant also applied for a scholarship on 6 December 2020 in which he stated that he is diagnosed with paranoid schizophrenia, depression and anxiety (T6, 31). A scholarship was offered to the applicant on 3 February 2021 (T10, 75). The applicant provided written acceptance of the scholarship in February 2021 (T11, 85).
8. On 19 January 2021, an Access Plan was developed following discussion with the applicant's Disability Liaison Officer (T12, 95).
9. In 2021, the applicant enrolled in four units during a study period, including the Unit, but withdrew from two units on 21 May 2021 because of difficulty passing those two units (T12, 89). Due to unintended impacts of withdrawing, the applicant contacted Deakin and requested to be re-enrolled in the units (T12, 86-89).
10. The applicant's academic history demonstrates that the applicant completed three units of study in Trimester 1 of 2021 (T39, 184).
11. On 14 July 2021, Deakin contacted the applicant to advise that it was concerned that he was at risk of not achieving satisfactory progress because he had failed compulsory units and had failed 50% or more of his enrolled credit points for the study period that had just completed (T13, 91).
12. On 16 July 2021, the applicant sought re-credit in relation to two units of study undertaken in Trimester 1 of 2021, one of which included the unit which is the subject of the current review application (T14, 93). In that application, the applicant provided the following details:
Details of circumstances
Pre-existing medical condition flared up - Schizophrenia and Autism Spectrum Disorder
Impact on your ability to study
paranoia and disorganised thoughts
13. In addition, the applicant provided evidence of requests for extensions of time and a medical certificate from Dr Lesley Lam, dated 15 July 2021, stating that 'due to the symptoms of Schizophrenia which causes paranoia and disorganised thoughts he was unable to submit the required online exams and application for supplementary exam within 3 days' (T14, 103).
14. This application for re-credit was approved (T16, 107).
15. The applicant received transfer credit and successfully completed three units of study in Trimester 1 of 2021 (T39, 184).
16. The applicant's transcript records demonstrates that he completed one unit of study, being Evidence Law, in Trimester 2 of 2022 (T39, 184).
17. On 8 November 2022, the applicant enrolled in the Unit in Trimester 3 of 2022 (T21, 122; T30, 145). The applicant enrolled in a further three units of study in Trimester 3 of 2022 (T30, 145). The census date for the Unit was 15 December 2022 (T26, 132).
18. The teaching period for Trimester 3 of 2022 commenced on 7 November 2022 and ended on 3 February 2023 (T37, 180-181).
19. The Unit included two assessment tasks. The first assessment was a report and submissions and the second assessment was an open book examination, each of which were weighted at 50% (T20, 118). The first assessment was due on Monday, 19 November 2022, and the second assessment was due during the Trimester 3 exam period, which was scheduled during 9-17 February 2023 (T20, 118-120).
20. On 9 December 2022, the applicant requested an extension of time for the first assessment in the Unit on the basis that he was suffering from 'extreme case of hay fever in late November and a serious throat infection from working with covid colleagues who didn't wear face masks to work. There were serious sore throat, headaches, nausea and a minor fever.' (T23, 127). The applicant also claimed to have experienced poor mental health as he was 'anxious, fatigued and sleeping 14-18 hours per day for the last 2-3 weeks' (T23, 127). The applicant supplied three medical certificates from Dr Blatt dated 23 November 2022, 30 November 2022 and 7 December 2022 respectively (T23, 129). On 9 December 2022, the request for an extension of time was granted (T25, 131).
21. The applicant submitted the first assessment on 5 January 2023 and achieved a score of 7.4 out of 50 (T29, 142). He attended the examination on 15 February 2023 and achieved a score of 18.5 out of 50 (T29, 136; T35, 165). A fail grade was recorded for the Unit (T39, 184).
22. The applicant's transcript records that the applicant achieved two passes and a credit for three other units for the same study period, i.e., Trimester 3 of 2022 (T39, 184).
As the hearing was de novo, the Tribunal has considered the Applicant’s Statement of Evidence,[1] and Summary of Facts and Arguments,[2] the Respondent’s Statement of Facts, Issues and Contentions and Submissions in Reply dated 5 March 2024, together with the T-Documents[3] and Supplementary T-Documents.[4] The Tribunal has also considered the Applicant’s oral evidence and the oral submissions made by the parties.
[1] Exhibit A1.
[2] Exhibit A2.
[3] Exhibit R1.
[4] Exhibit R2.
RELEVANT LEGISLATION
The Respondent sets out the relevant legislation, which the Tribunal adopts.[5] Chapter 3 of the Act provides for four kinds of assistance that the Commonwealth provides to higher education students. One of those kinds of assistance is HECS-HELP assistance, which is assistance to meet a student's liability to pay student contribution amounts for units of study that are Commonwealth supported. Part 3-2 of the Act provides for HECS-HELP assistance.
[5] Respondent Statement of Facts, Issues and Contentions, [33]-[42].
Neither the Original Decision nor the Review Decision specify the provisions relied on; however, the Respondent considers for the reasons set out in the section 37 statement at T2, 7-9 and the Tribunal agrees, that the provisions which apply to the Unit are the provisions relevant to HECS-HELP balances.[6]
[6] See s 144 of Part 2 of Schedule 3 of the Higher Education Support Legislation Amendment (Student Loan Sustainability) Act 2018 (Cth).
Chapter 4 of the Act provides for the repayment of loans made to students, with Part 4-1 setting out the provisions relevant to determining when a person incurs a HECS-HELP debt. In particular, section 137-5 of the Act sets out the provisions for determining when a HECS-HELP debt is incurred:
Incurring HECS-HELP debts
(1)A person incurs a debt to the Commonwealth if, under section 96-1, the Commonwealth:
(a)makes a loan to the person; and
(b)uses the amount lent to make a payment in discharge of the person’s liability to pay his or her student contribution amount for a unit of study.
(c)The debt is a HECS-HELP debt.
(2)The amount of the HECS-HELP debt is the amount of the loan.
When HECS-HELP debts are incurred
(3)A HECS-HELP debt is taken to have been incurred by a person immediately after the census date for the unit, whether or not the Commonwealth has made a payment in respect of the person’s student contribution amount for the unit.
Remission of HECS-HELP debts
(4)A person’s HECS-HELP debt in relation to a unit of study is taken to be remitted if section 36-20, 36-24A or 36-24B, 36-24BB or 36-24BC applies to the person (even if subsection 36-20(3), 36-24BB(3) or 36-24BC(3) applies to the provider in relation to the person).
(5)A person’s HECS-HELP debt in relation to a unit of study is taken to be remitted if the person’s HELP balance is re-credited under Division 97 in relation to the unit.
Note: The debt is taken to be remitted even if the person’s HELP balance is not increased by an amount equal to the amount re-credited.
With respect to the unit of study to which the application relates, Division 97 applies. Division 97 provides that the HECS-HELP debt in relation to a unit of study is taken to be remitted if the person’s HELP balance is re-credited. The relevant provisions which apply are section 97-25. That provision provides for the re-credit of a HELP balance debt by higher education providers in special circumstances:
(2) A higher education provider must, on the Secretary’s behalf, re-credit a person’s HELP balance with the 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 provider; 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 that 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 meaning of the term ‘special circumstances’ in section 97-30 states:
(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.
The application period is stipulated in section 97-35 of the Act which states:
(1)If:
(a)the person applying under paragraph 97-25(2)(d) for the re-crediting of the person’s HELP balance in relation to a unit of study has withdrawn his or her enrolment in the unit; and
(b)the higher education provider gives notice to the person that the withdrawal has taken effect; the application period for the application is the period of 12 months after the day specified in the notice as the day the withdrawal takes effect.
(2)If subsection (1) does not apply, the application period for the application is the period of 12 months after the period during which the person undertook, or was to undertake, the unit.
Census date is defined in the Dictionary in Schedule 1 to the Act as follows:
census date:
(a) for a unit of study for a year, means:
(i) if the student undertaking the unit has not accessed it through Open Universities Australia—the date determined under section 169-25; and
(ii) if the student undertaking the unit has accessed it through Open Universities Australia—the date determined under subsection 104-4(5); and(aa) for an accelerator program course for a period ascertained in accordance with the Administration Guidelines, means the date determined for that period under subsection 169-21(1A); and
(b)for a VET unit of study for a year, means the date determined under clause 67 of Schedule 1A.
Section 169-25 of the Act, which is in Part 5-2 of Chapter 5, provides for determining (inter alia) census dates:
(1) A higher education provider must, for each unit of study it provides or proposes to provide during a period ascertained in accordance with the Administration Guidelines, determine, for that period:
(a) a particular date to be the census date for the unit; and
(b) the EFTSL value for the unit.Note: If a higher education provider provides the same unit over different periods, the unit is taken to be a different unit of study in respect of each period. Therefore the provider will have to determine a separate census date, and a separate EFTSL value, in respect of each period.
(1A) A higher education provider must, for any accelerator program course it provides or proposes to provide during a period ascertained in accordance with the Administration Guidelines, determine, for that period:(a) a particular date to be the *census date for the course; and
(b) the EFTSL value for the course.
(2) A date determined under paragraph (1)(a) or (1A)(a) must be determined in accordance with the Administration Guidelines.
(3) The provider must publish:(a) the census date for the unit or course by the date ascertained in accordance with, and in the manner specified in, the Administration Guidelines; and
(b) the EFTSL value for the unit or course by the date ascertained in accordance with, and in the manner specified in, the Administration Guidelines.Subsection 97-30(2) of the Act requires that, 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) of the Act, any decision of a higher education provider under section 97-30 must be made in accordance with any such guidelines.
Chapter 3 of the Higher Education Support (Administration) Guidelines 2022 (Cth) (‘the Administration Guidelines’) specifies the matters which must be examined and considered by the Tribunal when assessing whether 'special circumstances' apply to an individual for the purposes of s 36-21(2) of the Act. In that regard, Part 3 of the Administration Guidelines states the following:
12 Circumstances beyond a person’s control
(1)For the purposes of paragraphs 36-13(3)(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. Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.
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 day;
(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. Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act.
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.
(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. Note: Circumstances specified in this provision also apply for the purposes of subsections 97-30(2) and 104-30(2) of the Act. 15 Method of publication The method of publication of the higher education provider’s decision under this Part is to be determined by the higher education provider.
Note 1: Persons whose interests are affected by the decision must be notified of the decision and of their right to have it reviewed (see section 27A of the Administrative Appeals Tribunal Act 1975).
Note 2: An application for review of the provider’s decision under the Act must be made by written notice and must be made within 28 days, or such longer period as the reviewer allows, after the day on which the person first received written notice of the decision (see section 209-10 of the Act).ISSUES FOR DETERMINATION
At the outset of the hearing the Applicant indicated that the conditions he relied upon for ‘special circumstances’ purposes were:
(a)His mental health deterioration during the period December 2022 to February 2023; and
(b)His eyesight deterioration resulting in poor vision during the period 27 January 2023 to 31 January 2023 (together, ‘the Conditions’).
The Tribunal agreed, and since other previously asserted ailments only impacted the Applicant prior to the census date, being 15 December 2022, as identified below, such were not and could not have formed a relevant foundation for any “special circumstances” claim.
The parties agreed and the Tribunal finds that the two critical issues to be determined within the “special circumstances” context are whether either (or both) the Conditions:
(a)Were beyond the Applicant’s control; and
(b)Made it impracticable for the person to complete the requirements for the Unit, in the period during which the Applicant undertook the Unit being November 2022 to February 2023.
The Applicant maintained and the Respondent accepted that the Conditions did not make their full impact on the Applicant until after 15 December 2022, the census date of the Unit; and on the evidence the Tribunal finds accordingly.
CONSIDERATION
The Applicant testified that he unilaterally (without any consultation with any of his medical professionals) stopped taking Brexpiprazole in late October/early November 2022,[7] in the hope of getting off medication altogether. He said that he had had some previous periods off medication including a successful period during the Covid lockdowns in Melbourne. However, some weeks afterwards, in late 2022, the Applicant’s mental health started to deteriorate and he commenced taking Aripiprazole (which he had been prescribed some years earlier).[8] The Applicant did not inform his medical professionals of these unilateral treatment changes until January 2023.[9] The Applicant also concealed the symptoms of his deteriorating mental health from his medical professionals until January 2023,[10] revealing such on 19 January 2023.[11]
[7] Exhibit A2, [4].
[8] Exhibit A2, [5].
[9] Exhibit A1, [6].
[10] Exhibit R2, 273.
[11] Exhibit R2, 294.
The Tribunal notes, that the Applicant’s mental health decline commenced in mid-December 2022 and he experienced same following 15 December 2022, relating to work stressors and the pressure of his studies.[12]
[12] Exhibit R1, 162.
The Respondent submits that in light of the Applicant’s conduct altering his own medication the Applicant’s decline in mental health was not beyond his control “in the relevant sense”. On balance, the Tribunal agrees and is satisfied that, whilst the Applicant may not have known with certainty of the consequential gradual deterioration in his mental health, he essentially was self-treating during this period. This was entirely the decision of the Applicant and an action for which he was solely responsible. In that sense, relevantly, the Applicant’s deteriorating mental health at the time was not beyond his control. The Tribunal is satisfied, from the evidence before it, that Applicant would have been aware, in light of his mental health history, of the significant risks associated with altering his medications without consultation with his medical professionals.
In respect of the temporary poor vision the Applicant experienced for the limited 5-day period in late January 2023, the Tribunal is satisfied that this was beyond the Applicant’s control.
Although each requirement of section 92-30 to establish “special circumstances” must be satisfied, for completeness, concerning the mental health condition, the Tribunal provides its reasoning with regard to “impracticability” in addition to such in respect of the Applicant’s temporary poor vision condition.
As discussed with the Applicant during the hearing, the Tribunal must be satisfied that it was impracticable for him to complete the Unit during the relevant period and that requirement is guided by the matters the Tribunal must consider pursuant to Chapter 3 of the Administration Guidelines. Importantly paragraph 14(1)(a) provides for “medical circumstances – for example, where a person’s medical condition has changed to such an extent that he ... is unable to continue studying”.
During questioning by the Tribunal, the Applicant accepted that he was able to continue studying during the period November 2022 to February 2023. Further, he agreed that during that period he completed and handed in assignments on 5 January 2023, 13 January 2023 and 6 February 2023.[13] He also had input (although perhaps to a limited extent) into a group assignment completed and submitted on 9 January 2023, and sat and passed exams in 3 other units in February 2023.[14] Based upon such evidence, the Tribunal is satisfied that the “impracticable” requirement is not met with respect to this condition because meeting the requirements of these other units during the same time period clearly was “able to be done”.[15]
[13] Exhibit R1, 173.
[14] Exhibit R1, 164-66.
[15] Zabaneh and Secretary, Department of Education and Training [2016] AATA 569, [45].
Similarly, the temporary eyesight deterioration between 27 January 2023 and 31 January 2023 (when considered in the context of the evidence as discussed above regarding the Applicant’s continuity in lodging assignments and sitting for and passing three exams) does not provide a sufficient basis for the Tribunal to find any special circumstances that made it impracticable for the Applicant to complete the requirements for the Unit.
CONCLUSION
The Tribunal finds that there were no “special circumstances”, as relevantly defined, during the relevant period which made it impracticable for the Applicant to complete the requirements for the Unit and, in particular, no medical circumstances preventing his abilities in that regard.
Insofar as the retrospective letter dated 4 April 2023[16] asserts any selective impracticability to be unable to complete the requirements just for the Unit and not the three others, such assertion is rejected. The Applicant concurrently (and successfully) completed, the requirements for the three other units. The contemporaneous evidence before the Tribunal, as discussed above, underscored the Applicant’s abilities to study and otherwise succeed throughout the relevant period.
[16] Exhibit R1, 162.
DECISION
The Tribunal affirms the decision under review.
1. I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak KC, Member
.................................[SGD].......................................
Associate
Dated: 23 April 2024
Date of hearing 3 April 2024, by video Applicant Self-represented Advocate for the Respondent Ms. Subasha Prasad Solicitors for the Respondent MinterEllison
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