HIGHER EDUCATION - student enrolled in full-time courses with higher education provider - request for withdrawal not submitted - enrolment not withdrawn at census date - Student Learning Entitlements affected - whether grounds for special circumstances - special circumstances not established - decision affirmed

Higher Education Support Act 2003 (Cth) s 73-15, s 79-1, s 79-5, s 206-1, s 209-10, s 212-1

1. Caroline Magliano enrolled in two subjects of study in a Bachelor of Education course at the University of New England in July 2010. She had recently returned to Australia from the United States after the dissolution of her marriage in February 2010. Property orders had been made by the Massachusetts Trial Court and the first instalment was due to be paid in June 2010.
2. After Ms Magliano realised that the instalment was not forthcoming she decided she would have to obtain full-time employment to support herself and her daughter. She had returned to Australia with no possessions and had no other financial means. She decided she had to abandon her studies. Once that decision was made, Ms Magliano had no further contact with the University and heard nothing until July 2011 when she received notification from the Australian Taxation Office of a HECS debt for the two subjects she had enrolled in.
3. Ms Magliano sought a remission of fees for the units of study she had never commenced.
4. The Higher Education Support Act 2003 provides for "student learning entitlements" (SLEs) which are comprised of units called "EFTSL" (equivalent full-time study load). When a person is enrolled in a unit of study at census date (in this case 31 August), the person's SLE will be reduced by the value allocated to that unit of study. For example, Literacy in Context, one of the subjects in which Ms Magliano was enrolled, had an EFTSL value of .125. The corresponding fee for the unit of study became a Commonwealth Assistance Liability - a debt owed by Ms Magliano and recoverable through the taxation system.
5. A person's SLE may, in certain circumstances, be re-credited by the amount of the value of a person's EFTSL. The re-crediting circumstance relevant to this application is provided for in section 79-1(1)(c) of the Act, namely that "the provider is satisfied that special circumstances apply to the person".
6. Ms Magliano asserts that her circumstances are special within the meaning of the Act.

1. Section 79-5 of the Act provides that special circumstances apply to a person only if the provider is satisfied that those circumstances:
   • (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 during the period during which the person undertook, or was to undertake, the unit.
2. Therefore the issues for me to consider are whether Ms Magliano's circumstances:
   • (i) were beyond her control; and
   • (ii) did not make their full impact until on or after the census date; and
   • (iii) made it impracticable for her to complete the units she had enrolled in.
3. I note the Secretary's concession that Ms Magliano's circumstances made it impracticable for her to complete the units she enrolled in. I agree. It follows that I will consider only the first two of the issues set out above.

WERE MS MAGLIANO'S CIRCUMSTANCES BEYOND HER CONTROL?

1. There is no dispute that Ms Magliano's expected property settlement did not come through and that as a consequence she had to obtain full time work. There is no evidence to suggest that Ms Magliano had any control over these events.
2. However, Ms Magliano conceded that she overlooked the need to formally withdraw from the subjects she had enrolled in.
3. Ms Magliano said that from June 2010 she was struggling financially and had to focus on looking for work. She said that while she was aware that all University communications were to be by e-mail, she did not access her e-mail because she was focussed on other things and was very anxious - that is, she did not access her e-mail because of her circumstances. Failing to access her e-mail meant she was unaware that the census date was 31 August.
4. Ms Magliano also said she had never completed any assignments and expected some contact from the University because of that. She said that a lack of response to subject requirements indicates a problem with a student and should prompt some intervention by the University. Ms Magliano contended that the enrolment process is unclear and this is exacerbated by all communication being electronic. She also said it is made worse by telephone waiting times of as long as 35 minutes.
5. Ms Magliano provided a certificate from her general practitioner, Dr Andrea Ling, stating that she "had been unwell due to anxiety in the time period 24 June 2010 to 13 September 2010" and "for this reason it was inappropriate for her to continue her tertiary studies." The certificate is dated 21 October 2011, more than a year after the period of the illness it describes. It makes no mention of treatment or of the severity of Ms Magliano's anxiety, but Ms Magliano gave evidence that she was prescribed medication which she ceased in October 2010 in favour of counselling.
6. I was referred to the Student Learning Entitlement Guidelines, a legislative instrument provided for by the Act under s 79-5(2). Paragraph 5.5.1 of the Guidelines provides:

"The 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."

1. Ms Magliano readily conceded that she had overlooked the need to withdraw from the subjects she had ceased to study. She also conceded that she did not check her e-mails from the University even though she had been advised that communication would be by e-mail. While I can appreciate this was a very difficult time for her and she was focussed on important and distressing matters, it was her responsibility to follow the procedures that had been communicated to her and to take the steps that would ensure she was not burdened with fees for subjects she had decided not to pursue.
2. There is no evidence that Ms Magliano's anxiety was so severe that she could not take rational action or that it debilitated her to the point where she could not process the information available to her about her enrolment, withdrawal and the census date. I appreciate that enrolment processes can be difficult to grasp and that Universities are large bureaucracies that are often difficult to navigate. However, Ms Magliano's decision to study or not study was her own and her decision required her to take some ancillary action that appears to have been within her control to take.

DID MS MAGLIANO'S CIRCUMSTANCES MAKE THEIR FULL IMPACT BEFORE THE CENSUS DATE?

1. Even if I were to find that Ms Magliano's failure to withdraw from her units of study prior to the census date was for reasons beyond her control, I would still have to be satisfied that her circumstances did not make their full impact on her until after the census date.
2. The census date was 31 August. Ms Magliano commenced her search for employment in June. She began treatment for anxiety in June and said in the hearing before the Tribunal that her condition peaked in August. These events preceded the census date. The circumstances that made it impracticable for her to complete the requirements for her subjects were established in full effect prior to the census date.
3. It follows that Ms Magliano's circumstances are not special within the meaning of the Act.

1. The Tribunal affirms the decision under review.

I certify that the preceding 21 (twenty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Bell.

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