43.1 - Provider review of decision
A provider must have review procedures for reconsidering decisions relating to a person's assistance [HESA paragraph 19-45(1)(c)]. The review procedures must be published, publicly available, and up-to-date. They must comply with any requirements in chapter 4 of the HEP Guidelines and HESA sections 19-45, 19-50 and 19-55. For the Code of Practice for Notification of Reviewable Decisions and Rights of Review, see Appendix K.
Providers must provide details of the letters that they are required to send to a person who has requested the review of a decision, including the required content of the letters.
A provider may include other review procedures with which its review officers must comply, provided these procedures are consistent with HESA requirements. These other review procedures must not limit a person’s right to apply for a review of a decision.
Request for reconsideration of decision
A person has the right to apply for a reconsideration of a decision to not re‑credit, remit and/or repay [HESA section 209‑10]. The time limit for applying for a reconsideration of a decision is 28 days from the day the person first received notice of the decision, or such longer period as the reviewer allows [HESA subsection 209-10(2)]. The person must state the reasons why they are applying for a reconsideration of the decision [HESA subsection 209-10(3)].
If a full fee-paying student has paid their fees up-front, and did not request FEE-HELP assistance, the review procedures under HESA do not apply. In this instance, the student cannot under HESA request a review or refer the matter to the AAT.
Reconsideration of decisions made out of time
Where an applicant applies to a provider to reconsider a decision not to re-credit, remit and/or repay, and the application is made outside of the 28 day time limit, or such time as the provider allows, the provider is not obliged to reconsider the decision [HESA subsection 209-10(2)]. When deciding whether to accept an out-of-time application for reconsideration, a provider should take into account reasons provided by the applicant for making a late application and the amount of time that has expired. The special circumstances test does not apply to decisions about whether to extend the time to seek reconsideration of a decision.
If the provider does not extend the time limit, the applicant should be advised that their application has been rejected because it was made out of time and provided with written reasons why the time limit was not extended. The provider should not address the merits of the application for reconsideration.
Where a provider declines to reconsider an application because the appeal was made out of time, there is no obligation under HESA to refer the student to the AAT. Providers should consider carefully whether, as a matter of procedural fairness, they should allow students to access their internal appeals and complaints process for review of a decision not to extend time.
Chapter 4 of the HEP Guidelines requires that a provider must acknowledge receipt of the request for reconsideration. If the request for reconsideration is received within time, this acknowledgement must also:
- inform the person the reviewer is taken to have confirmed the original decision if they have not received a decision within 45 days of the reviewer receiving their application [HESA subsection 209-10(6)]
- inform the person of their right to apply to the AAT for a review of the reviewable decision that has been confirmed, varied or set aside under [HESA section 209-5 or 209-10]; and
- provide the contact details of the closest AAT Registry and the approximate costs of lodging an appeal with the AAT.
Providers must inform applicants that an application to the AAT must generally be made within 28 days from the date the applicant receives the reviewer’s decision.
A provider must also:
- appoint a review officer who is not the same officer who made the original decision and who occupies a position that is senior to that occupied by the original decision-maker
- notify the person, in writing, of the reviewer’s decision and the reviewer’s reasons for making the decision (the reviewer’s available options are to confirm the decision, vary the decision, or set the decision aside and substitute a new decision)
- advise the person of their right to appeal to the AAT for a review of the reviewer’s decision if the person is unsatisfied with the outcome [Administrative Appeals Tribunal Act 1975 section 27A]; and
- provide the person with the contact details and address of the nearest AAT Registry.
Providers may find it useful to maintain an up-to-date register of review officer appointments.
43.2 - Review by the AAT
A person may make an application to the AAT for a review of a provider’s decision to refuse to re‑credit, remit and/or repay (which has been confirmed, varied or set aside on reconsideration), and may supply additional information to the AAT they did not previously supply to the provider, including the provider's reviewer.
The Secretary of the department is the respondent for cases that are before the AAT. When the department receives notification of an application to the AAT, it may choose to review the original decision under HESA paragraph 209-5(2)(b).
Once the department has received notification from the AAT that the person has applied for the review under section 27 of the Administrative Appeals Tribunal Act 1975 (AAT Act), the Secretary must lodge, in accordance with section 37 of the AAT Act, the following documents with the AAT within 28 days:
- a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
- every document or part of a document that is in the decision-maker’s possession or under the decision-maker’s control and is considered by the decision-maker to be relevant to the review of the decision by the AAT.
Upon receipt of a notification from the AAT that a person has filed an application for review of a decision, the department will notify the provider(s), in writing, that a request for review has been lodged. To enable the department to meet the statutory timeframe for lodging relevant documents with the AAT, a provider must give the department copies of all the documents it holds that are relevant to the appeal within five business days of them being requested. The provider should keep any originals and copies of the documents in accordance with their normal record-keeping practices.
Subject to there being a current delegation of powers by the Secretary of the department to enable review officers of providers to review original decision of providers, a provider may, in accordance with HESA paragraph 209-5(2)(b), reconsider a decision for which review is being sought by the AAT. The provider must advise the department if a decision is made to re-credit, remit and/or repay following consideration.
However, until a person withdraws their AAT appeal, or the appeal is dismissed or otherwise closed by the AAT, the department must comply with section 37 of the Administrative Appeals Tribunal Act 1975. Therefore, a provider must still forward all relevant documents to the department within the five business days, unless the department advises otherwise. The department will deal with cases from that point and advise the provider of the outcome.