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HIGHER EDUCATION SUPPORT - HECS-HELP - remission of debt - special circumstances - whether the applicant's circumstances were beyond his control - whether the applicant's circumstances made their full impact on or after the census date - medical evidence - Tribunal does not find special circumstances - decision affirmed

Higher Education Support Act 2003 (Cth), s 36-20, 36-21, 87-1

1. On 13 October 2015, the Applicant submitted an application to the University of New England (UNE) for remission of his HECS-HELP debt under s 36-20 of the Higher Education Support Act 2003 (Cth) (the Act) for the following units of study:
   • (a) Trimester 1, 2015: LAW231 - Law of Torts 1 with an Equivalent Full-Time Student Load (EFTSL) value of 0.125 and a census date of 31 March 2015;
   • (b) Trimester 2, 2015: LAW272 - Law of Contract II with an EFTSL value of 0.125 and a census date of 31 July 2015;
   • (c) Trimester 2, 2015: LAW157 - Alternative Dispute Resolution with an EFTSL value of 0.125 and a census date of 31 July 2015;
   • (d) Trimester 2, 2015: LAW232 - Law of Torts II with an EFTSL value of 0.125 and a census date of 31 July 2015;
   • (e) Trimester 2, 2015: LAW251 - Corporation Law with an EFTSL value of 0.125 and a census date of 31 July 2015.
2. UNE, both initially and on review, refused the Applicant's application on the basis that his circumstances did not satisfy the criteria for 'special circumstances' set out in the Act.
3. On 29 January 2016, the Applicant applied to the General Division of the Administrative Appeals Tribunal for a review of the UNE decision.
4. The matter was heard in Sydney on 22 September 2016. The Applicant attended the hearing in person and had legal representation.

1. In 2004, the Applicant completed a Bachelor of Engineering Science at Ain Shams University in Egypt. He subsequently came to Australia on a student visa and completed a Bachelor of Civil Engineering at the University of New South Wales (UNSW) in 2009. He further completed a 'double degree' of Masters of Business and Masters of Project Management at UNSW in 2014.[1]
2. Since 2012, the Applicant has suffered from chronic major depressive disorder with features including lowered mood, poor memory and concentration, diminished persistence, diminished motivation, and fluctuations of degree for short periods of a few days or weeks.[2]
3. This diagnosis is confirmed in a medical report by Dr Anthony Dinnen (Consultant Psychiatrist) dated 11 December 2014, which described the Applicant's 'concentration, persistence and pace' as follows:

Memory and concentration were very poor at interview. He told me he can't study. If he reads something he has to read it again. He is distracted.[3]

1. On 13 December 2014, the Applicant enrolled in subjects for a Bachelor of Laws at UNE.[4]

1. HECS-HELP is a loan scheme to help eligible students pay their student contribution amounts through a loan or upfront discounts. Pursuant to s 87-1 of the Act, a student may be entitled to HECS-HELP assistance based on their student contribution amounts for units of study, less any upfront payments. The assistance is paid to a higher education provider to discharge the student's liability to pay their student contribution amounts.
2. A person can apply to a higher education provider for the remission of their HECS-HELP debt in respect of a unit of study under s 36-20 of the Act. Subsection 36-20(1) sets out the circumstances in which a higher education provider must determine that s 36-20 applies. Relevant to this matter, ss 36-20(1)(d), (e) and (f) of the Act provide:

(d) the provider is satisfied that special circumstances apply to the person (see section 36-21); and

(e) the person applies in writing to that provider for either or both:

(i) the repayment of any amounts that the person paid in relation to his or her *student contribution amount for the unit; or

(ii) the remission of the person's *HECS -HELP debt in relation to the unit; and

(f) either:

(i) the application is made before the end of the application period under section 36 -22; 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.

1. Subsection 36-20(2) of the Act states that, if s 36-20 applies, the higher education provider must both pay the person the amount of their student contribution of the unit of study and pay the Commonwealth an amount equal to the HECS-HELP assistance the person was entitled for the unit.
2. Subsections 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. [emphasis added]

1. In accordance with s 36-21(2) of the Act, I also consider the Administration Guidelines 2012 (Administration Guidelines). Relevantly, Chapter 3 of the Administration Guidelines specifies the circumstances in which a higher education provider will be satisfied that 'special circumstances' exist:

3.5 CIRCUMSTANCES BEYOND A PERSON'S CONTROL

3.5.1 A 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.

3.5.5 The situation referred to in paragraph 3.5.5 [sic] must be unusual, uncommon or abnormal.

3.10 CIRCUMSTANCES THAT DID NOT MAKE THEIR FULL IMPACT UNTIL ON OR AFTER THE CENSUS DATE

3.10.1 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; 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.

3.15 CIRCUMSTANCES THAT MAKE IT IMPRACTICABLE FOR THE PERSON TO COMPLETE THE REQUIREMENTS

3.15.1 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 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.

1. The determinative issues for the Tribunal are whether the circumstances of the Applicant were:
   • (a) beyond his control; and
   • (b) did not make their impact on him until on or after the census date for the unit of study and question; and
   • (c) made it impractical for him to complete the requirement of the unit during the relevant period.

Were the Applicant's circumstances beyond his control?

1. At the Tribunal hearing, the Applicant said that he enrolled in a Bachelor of Laws degree at UNE in 2015 because he was interested in law and human rights, and he believed that studying would assist him to keep active and diminish his symptoms of depression. He acknowledged that the severity of his symptoms have changed from time to time, but felt at the beginning of 2015 that his symptoms had stabilised.
2. In an application to UNE to access special needs support services dated 24 February 2015, Dr Ken Zhang (General Practitioner) stated that the Applicant had been diagnosed with 'Anxiety & Depression' and requested that he not complete exams at an examination centre as he suffers 'Anxiety & panic attack [sic] in crowded situation'.
3. In his written statement dated 22 August 2016, the Applicant noted that he enrolled in a full-time course load of four subjects in Semester 1 [Trimester 1].[5] UNE accommodated his disability by allowing him to submit assignments two weeks after the due date without penalty, and allowing him to sit exams at home (rather than onsite) with an extended time period to complete exams.
4. In Trimester 1, the Applicant passed three subjects and, after applying for special consideration, was permitted to re-sit the exam for the subject he had failed, LAW231 - Law of Torts 1 in Trimester 2.
5. In Trimester 2, the Applicant enrolled in the following subjects: LAW272 - Law of Contract II on 6 May 2015; LAW157 - Alternative Dispute Resolution on 17 June 2015; LAW232 - Law of Torts II on 13 December 2014; and LAW251 - Corporation Law on 10 June 2015.
6. The Applicant told the Tribunal that he was aware the census date for Trimester 2 was 31 July 2015. He also acknowledged that he had received the coursework (including assessment) that was required for each subject when lectures for Trimester 2 began in the week beginning 29 June 2015.
7. The Applicant's statement dated 22 August 2016 described a worsening of his symptoms of depression and anxiety at about the end of July 2015. These symptoms included a deterioration of memory and ability to concentrate, problems sleeping, difficulty in getting out of bed, and much lower mood. He said that while he had experienced swings in his symptoms in the past, in this case his symptoms remained 'very bad for many months'.[6] He continued to submit assignments and received low marks.
8. The day before his first scheduled exam on 6 October 2015, the Applicant advised UNE by email that he wished to withdraw from all subjects without penalty or failure.[7]
9. The Applicant provided a medical report on 26 October 2015 from Dr Zhang, which stated the Applicant:

has chronic major depression. This illness is chronic and fluctuating, He is reporting to be depressed and having poor memory and poor concentration for the last 7 weeks.

1. The evidence before the Tribunal shows that the Applicant first enrolled in subjects to study for a Bachelor of Laws degree on 13 December 2014. This was only two days after Dr Dinnen wrote a medical report on 11 December 2014, which described the adverse impact of the Applicant's chronic major depression on his ability to study.
2. While the Applicant acknowledged that his depressive symptoms fluctuated over time and I accept his evidence that he experienced more severe depressive symptoms from late July 2015, there is no evidence that he sought medical assistance for his depression. The Applicant's medical records show he only saw his GP Dr Zhang on 10 September 2015 and 26 October 2015,[8] a significant period after the Applicant said his symptoms worsened. There is also no evidence that the Applicant made an appointment to see either Dr Dinnen or another psychiatrist for assistance during this period.
3. I am satisfied that the Applicant's situation was not beyond his control. This is because he was responsible for his decision to enrol in full time study two days after a psychiatrist's medical report described him experiencing poor memory and concentration, and having an inability to study. As the Applicant had been diagnosed with a chronic major depressive disorder almost three years prior to this time and had experienced fluctuating symptoms, I find that his situation between July and October 2015 could not be described as 'unusual, uncommon or abnormal'.[9]

Did the Applicant's circumstances not make their full impact on him until on or after the census date for the unit of study?

1. The census date for Trimester 2 was 31 July 2015. In his statement dated 22 August 2016, the Applicant told the Tribunal that his symptoms of depression and anxiety worsened from about the end of July 2015.
2. I do not accept that his circumstances only made their full impact until after the census date. The Applicant has provided information that shows he submitted assignments for LAW272 on 28 August 2015 and LAW157 on 7 September 2015 (seven days late). He also submitted assignments for LAW231 on 19 April 2015 (six days late), LAW232 on 26 August 2015 and LAW251 on 7 September 2015.[10] 'Moodle logs' show that the Applicant accessed assignments submissions webpages for his subjects throughout August, September and October 2015.[11] This demonstrates that the Applicant had the ability to regularly access relevant webpages and complete assignments after the census date.
3. The Applicant's medical evidence from Dr Zhang on 26 October 2015 stated that the Applicant had chronic major depression, and was reporting 'to be depressed and having poor memory and poor concentration for the last 7 weeks'.
4. A letter from Ms Mariana Rubcic (Community Support Worker) dated 29 October 2015 reported:

...Throughout his studies, [the Applicant] has expressed on numerous occasions difficulties with low mood, memory and focus, leading to instances of becoming overwhelmed with the course content. [The Applicant] reported an increase in these symptoms since September 2015, leading to an inability to sit his final exams.

1. On 28 June 2016, Ms Rubcic provided a different timeframe for the Applicant's worsening depression:

From late July to September 2015, [the Applicant] experienced an increase in depressive symptoms, such as overwhelming feelings of sadness, low energy, poor attention and memory and increased isolation. These symptoms lead [sic] to deterioration in daily functioning and made it impracticable for him to complete the requirements of his course.

1. While the evidence of Dr Zhang and Ms Rubric suggest that the Applicant's depressive symptoms increased after the census date, I note that this evidence appears to have been provided so as to support the Applicant's application to UNE for remission of his HECS-HELP debt.
2. There is no evidence that the Applicant sought any medical assistance for his depression in the period after the census date until he saw Dr Zhang on 26 October 2015. I note that Dr Zhang's medical records from the Applicant's appointment on 10 September 2015 make no reference to his experiencing depressive symptoms. I further note that Ms Rubric's letters provide inconsistent timeframes in describing the Applicant's depression and therefore place limited weight on her evidence.
3. I accept that the Applicant experienced fluctuating symptoms in relation to his chronic depressive disorder since 2012. However, the Applicant was able to submit assignments and regularly access moodle logs between August 2015 and October 2015, and did not report depressive symptoms in an appointment with Dr Zhang on 10 September 2015. Based on the evidence before me, I am not satisfied that the Applicant's circumstances did not make their full impact on him until after the relevant census date for his subjects.

Did the Applicant's circumstances make it impracticable for him to complete the requirement of the unit during the relevant period?

1. At the Applicant's request, UNE provided him special consideration because of his medical circumstances. This included providing the Applicant with additional time to submit assignments and permitting him to sit exams at home and allowing him additional time to complete exams.
2. Based on the Applicant's evidence, I find that notwithstanding the special consideration that UNE afforded the Applicant, his symptoms of depression and anxiety did make it impracticable for him to complete his requirements for his enrolled units of study in October 2015. This finding is consistent with Dr Dinnen's report on 11 December 2014, which stated the Applicant 'can't study'.

1. Pursuant to ss36-21(1) of the Act, special circumstances only apply to a person where the circumstances are beyond a person's control and make their full impact on or after the census date and make it impracticable for the person to complete the requirements for the unit of study.
2. While the Applicant's fluctuating symptoms of depression may have made it impractical for him to complete his requirements for his enrolled units of study, I find that his circumstances were not beyond his control and his circumstances had made an impact on him before the census date. I therefore am satisfied that the Applicant's circumstances were not special circumstances as prescribed by s 36-20 of the Act.

1. The decision by the University of New England on 26 November 2015, to refuse to remit the Applicant's HECS-HELP fees for LAW231 - Law of Torts 1, LAW272 - Law of Contract II, LAW157 - Alternative Dispute Resolution, LAW232 - Law of Torts II and LAW251 - Corporation Law, is affirmed.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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[2] Submissions of the Applicant dated 22 September 2016.

[7] Exhibit A1, para 41 and Attachment F.

[8] Exhibit A2, Patient Health Summary of the Applicant.

[9] Administration Guidelines 2012, 3.5.5.