Toner and Department of Family and Community Services [2000] AATA 39 (28 January 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 39

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/1175

GENERAL ADMINISTRATIVE DIVISION )

Re NICHOLAS TONER

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS

Respondent

DECISION

Tribunal Mr J.T.C. Brassil, AM, Member

Date 28 January 2000

Place Melbourne

Decision The decision under review be affirmed

(Sgd.) J.T.C. Brassil

Member

CATCHWORDS

EDUCATION - Higher Education Funding -- HECS debt - whether to remit

Higher Education Funding Act 1988 - Sections 106J, 106L

REASONS FOR DECISION

28 January 2000 Mr J.T.C. Brassil, AM, Member

1. This is an appeal against a decision not to remit a debt under the Higher Education Contribution Scheme (HECS) incurred by the applicant, Nicholas Toner, for subjects at the Queensland University of Technology in semesters 1 and 2 in 1997.

2. The appeal was heard on 30 April 1999. The applicant was self-represented and Mr R Frazzetto appeared for the respondent.

3. The documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 were taken into evidence. Telephone evidence on behalf of the applicant was given by Mr Grant Devilly, a clinical psychologist, and Bro Damien Price of the Christian Brothers.

Facts

4. The applicant in 1997 lived in a young adult community at Kangaroo Point, Brisbane supervised by the Christian Brothers and was enrolled at the Queensland University of Technology in the degree course for a Bachelor of Social Science. Bro Damien Price was responsible for the general operation of the community.

5. The debts each of $1237 were incurred, respectively, at the end of March for Semester 1 and at the end of August for Semester 2. The application for remission of these debts was made on 11 December 1997 (T 17).

6. On 1 November 1997 Mr Toner applied to the University for permission to withdraw without academic penalty, on medical grounds, and this was approved on 11 November 1997.

Legislation

7. It is provided in Section 106J(1) of the Higher Education Funding Act 1988 ("the Act") that a person incurs a HECS semester debt when the Commonwealth, under Section 57, makes a loan to the person and uses the amount lent to make a payment in discharge of the person's liability to pay a contribution in respect of a course of study during the semester. The debt is equivalent to the loan and is incurred on a census date for the particular semester. In this case it is 31 March 1997 for semester 1 and 31 August 1997 for semester 2.

8. The Secretary at Section 106L of the Act is provided with power to remit semester debt in special circumstances but "special circumstances" are not defined within the Act. The relevant sub-sections are as follow:

"106L(1) Subject to subsection (3), if a person has incurred a HEC semester debt, the Secretary may, on written application made by the person within 3 months after the debt was incurred, if the Secretary is satisfied:

(a) that the person, because of special circumstances, did not complete his or her course requirements during the semester or during the year in which the semester occurred; and

(b) that those circumstances justify the Secretary so doing; in writing, remit the whole of the debt or such part of the debt as the Secretary thinks fit.

106L(3) An application may be made under subsection (1) or (2) within 15

months after the debt was incurred, if:

(a) the person was unable, because of circumstances beyond his or her control, to make an application within the period of three months referred to in that subsection; or

(b) the special circumstances referred to in (1) or (2) only became known after the end of that period of 3 months."

9. The respondent provided (T23) a copy of the Secretary's Guidelines to assist in the interpretation of special circumstances when applications for remission are being considered. In particular when deciding whether or not the circumstances are beyond the person's control the Secretary says the situation "must be unusual, uncommon or abnormal" and says that a lack of knowledge or understanding of the regulations would not be considered as beyond a person's control. The Secretary concedes that "special circumstances might arise from medical, family, personal, employment or course related reasons" and states that each application would be considered on its merits together with any available documentary evidence which substantiates the claim.

Evidence

10. The applicant stated that he had, to the best of his recollection, sat an examination in one of his three subjects in Semester 1. He had to go to Victoria, his home was near Myrtleford, in June because of his brother's psychiatric illness. He made another trip to Victoria later in the year, he thought this may have been in September.

11. He said he had participated in an inter-university cycling event in Melbourne while he was in Victoria in June.

12. He explained a credit of $3503.92 shown on his bank statement (T11) as the proceeds of sale of some shares in October 1997 which his older brother had tipped him to sell.

13. Mr Grant Devilly, in telephone evidence, stated he had seen Mr Toner, at the time known as Nick Miller, from 11 July through to late November of 1996 and then again in February 1997. He was conducting a research program into post-traumatic stress disorder (PTSD) comparing two forms of treatment. The applicant presented with PTSD which was confirmed when given a full assessment. On symptoms of PTSD he met all the criteria, in the moderate to severe range. Presenting problems included a reasonably high general distress level and the degree of difficulty he had in keeping focused. Symptoms of depression were within the normal range to mild.

14. Mr Devilly had two letters from the applicant in 1997. The first was in April giving him permission to disclose to others that Mr Toner had been diagnosed with PTSD. The second was a request on 17 October 1997 asking for a "To whom it may concern" statement which would refer to his PTSD and indicate he was "a worthy candidate to have my HECS bill withheld for the subjects I could not complete..." He had then written the statement suggested on 1 November 1997 (T18).

15. He stated that he could comment directly on the health state of the applicant during 1997 as he had not seen him for an assessment but thought that he would experience the same problems that year that he had had in the previous year.

16. Bro Damien Price stated he had from January to April in 1997 done a social justice course along with Mr Toner in which he had been doing very well. When he had commenced his course at the university it was Bro Damien's observation that he was finding it hard to concentrate. He did not focus well and would go on long bike rides rather than do his assignments.

17. When Bro Damien asked him about his university course he would get fidgety and seemed to be stressed out. The applicant had talked to him in the middle of the year about pulling out but he had counselled him to stay, even though his role within the community was not one of counselling.

18. Bro Damien said he would have seen the applicant every single day he was resident with the community. He first thought that he was lazy or not settled but came to the conclusion he was stressed out. He had never recommended any treatment for Mr Toner as it took him a long time to see this had a medical side to it. Mr Toner was, however, quite able to participate in the normal activities and social interactions in the community house. He had strong views on some things and was quick to get into an argument.

Submissions

19. On behalf of the respondent Mr Frazzetto submitted that, on the basis of the provisions in Section 106L of the Act, there were two aspects for consideration, firstly, that his applications were out of time which would require Mr Toner to show that this was due to circumstances beyond his control and, secondly, he had to show there were special circumstances why he could not complete his course and that these were circumstances such as would justify remitting of the debt by the Secretary.

20. Mr Frazzetto submitted that the Secretary's Guidelines have been accepted in previous cases and should be taken into consideration in this case. He said any decision to remit would have to balance the liability on the public purse with justice to the individual.

21. He submitted that Mr Toner had agreed on cross-examination that he was conversant with the HECS requirements which had already applied to him for his Open Learning course in the previous year and, in particular, had acknowledged he was aware from the literature available that there was a 3 month limit after the census date for application to the department.

22. He submitted the legislation was tough on individuals and while one can be sympathetic to an individual's particular circumstances they still have to show that circumstances out of their control caused them to default in notification. He stated that Mr Toner had not presented evidence that circumstances out of his control prevented him from notifying within 3 months of the census date. He had actually made application to the University in respect of his withdrawal on 1 November which was only 2 months after the Semester 2 census date. He delayed until 11 December to approach the department and has provided no explanation for this delay which took him beyond the required 3 months for that semester.

23. He further submitted that the applicant had also to show that the circumstances were so grave that they prevented him from completing his course and he had not done so.

24. The applicant submitted that his PTSD was a condition not under his control which had affected his ability to concentrate on conforming with the various deadlines. His submission was that Mr Devilly had given evidence of his condition in 1996 and there had been a relapse in that sort of condition again in 1997 as was supported by the evidence given by Bro Damien. His medical condition was such that he was not thinking logically during this period and he would not have been focusing on his incurring of a debt.

Consideration of the Issues

25. The Tribunal has to consider what was the state of health of the applicant at the period of time he was attending the Queensland University of Technology during 1997. There is the evidence of Mr Devilly, a clinical psychologist, of his state of health during July to November in the previous year, clearly diagnosed as PTSD and Mr Devilly put it in the moderate to severe range. Then there is the evidence of Bro Damien, who is not medically qualified, that he noticed that the applicant lacked concentration, was fidgety, held views strongly and was quick to get into an argument. Bro Damien did not see it as having a medical basis until later in the year. Neither witnesses provided the Tribunal with a clear statement of the applicant's state of health in the relevant period.

26. There was no evidence that Mr Toner had been treated by a psychiatrist for his PTSD condition before, during or since 1997.

27. There was evidence that in June 1997 Mr Toner was able to travel to Victoria by car to visit his brother in hospital and to participate in an inter-university cycling competition. This was within the 3 month period following the census date for Semester 1. There is evidence he was again able to visit Victoria in September which is within the 3 months after the census date for Semester 2.

28. The Tribunal was given documentary evidence that the applicant made a written request on 1 November 1997 to the university regarding his academic status and was granted withdrawal without academic penalty. If he was able to make this application then why did his medical condition preclude him from taking not dissimilar action required of him in relation to his HECS debt at about the same time?

29. The evidence of Bro Damien was that the applicant lacked concentration and was not focusing on his studies but he was coping with the normal social interactions within the community in which he lived.

30. The evidence of Mr Devilly was that the applicant could, in October 1997, write to him requesting a statement that would assist him in his application to the university seeking withdrawal without academic penalty. This was part of his meeting bureaucratic requirements placed upon him by the university.

31. The Tribunal finds it cannot conclude from the evidence that the applicant was unable because of circumstances beyond his control to make the application within 3 months of either of the census dates for the two semesters.

32. The Tribunal is not convinced either, from the evidence, that the special circumstances, the effect of his medical condition, only became known after the end of the period of 3 months as each of the letters to Mr Devilly, in April and October, raised his PTSD condition and each was written in the 3 month periods following one of the census dates.

33. Thus the applicant is not able to gain the benefit of subsection 106L(3) of the Act and consequently the Tribunal does not have to decide whether he could have his special circumstances considered under subsection 106L(1) for the use of the discretion to remit the debt.

Conclusion

34. The Tribunal will affirm the decision under review.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.T.C. Brassil, AM, Member

Signed: Judith Holt, Associate

Date of Hearing 30 April 1999

Date of Decision 28 January 2000

Applicant Self-represented

Counsel for the Respondent Mr R. Frazzetto

Solicitor for the Respondent Australian Government Solicitor