J. Guide to special circumstances decision-making

Introduction

This guide is intended to assist providers to assess an application for a re-credit of FEE‑HELP balance, remission of a person’s HECS-HELP debt and/or repayment of any amounts the person paid towards their student contribution amount for a unit. The following text should be read in conjunction with the relevant provisions of HESA.

Under HESA, a person can make an application to:

  • have their FEE-HELP balance re-credited in relation to a unit, resulting in remission of the person’s FEE- HELP debt; or
  • have their HECS-HELP debt in relation to a unit remitted and/or their payments towards their student contribution amount for a unit repaid.

Decisions about whether a person is eligible to have their debt remitted and/or an amount repaid can only be made where a specific provision of HESA permits or requires the decision-maker to make that decision.

Which provision of HESA permits or requires the decision?

Before making a decision, it is important for the decision-maker to identify which provision of HESA permits or requires him/her to make that decision.

The table below sets out the HESA provisions that apply in deciding whether a person’s FEE-HELP balance should be re-credited, their HECS-HELP debt should be remitted and/or or their student contribution amount should be repaid:

Re-credit/remission/repayment Relevant section
Student contribution amount or HECS-HELP debt Section 36-20
FEE HELP – higher education providers Subsection 104-25(1)
FEE HELP – Open Universities Australia Subsection 104-25(2)

Regardless of which provision of HESA applies, when deciding whether a person is eligible to have their FEE-HELP balance re-credited, HECS-HELP debt remitted and/or their student contribution amount repaid, a decision-maker must consider the following:

  • Have the threshold criteria been met? (see Step 1); and
  • Do special circumstances apply? (see Step 2).

In the illustrative examples provided below, the sections of HESA that apply to re-crediting a person’s FEE-HELP balance have been used. When writing the reasons for a decision, providers must refer to the section(s) of HESA that specifically apply to the type of fee assistance for which a student is seeking re-credit or remission. For further guidance, refer to the information above.

Step 1 – Have the threshold criteria been met?

For a person to have their FEE-HELP balance re-credited, the person must satisfy all of the criteria in the relevant section of HESA.

The term ‘threshold criteria’ is used to describe all those criteria listed in a particular section except special circumstances. Example 1 below illustrates the threshold criteria for re‑crediting a person’s FEE-HELP balance are those set out in paragraphs 104-25 (1)(a), (aa) (b), (d) and (e) and 104-25(2)(a), (b), (d) and (e).

Before determining whether special circumstances apply to the person, the decision-maker needs to be satisfied that all of the threshold criteria have been met. Depending on the type of application being considered, the relevant threshold criteria appear in the sections of HESA as listed above.

Example 1 – HESA section 104-25 – Re-crediting a person’s FEE-HELP balance

The threshold criteria are bolded:

  1. A higher education provider must, on the *Secretary’s behalf, re‑credit a person’s *FEE‑HELP balance with an amount equal to the amounts of *FEE‑HELP assistance the person received for a unit of study if:
    1. the person has been enrolled in the unit with the provider; and access to the unit was not provided by *Open Universities Australia; an
      1. access to the unit was not provided by *Open Universities Australia; and
    2. 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
    3. the provider is satisfied that special circumstances apply to the person (see section 104‑30); and
    4. the person applies in writing to the provider for re‑crediting of the FEE‑HELP balance; and
    5. either:
      1. the application is made before the end of the application period under section 104‑35; or
      2. the provider waives the requirement 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.
    • *Open Universities Australia must, on the *Secretary’s behalf, re‑credit a person’s *FEE‑HELP balance with an amount equal to the amounts of *FEE‑HELP assistance the person has received for a unit of study if:
      1. access to the unit was provided by Open Universities Australia; and
      2. 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
      3. Open Universities Australia is satisfied that special circumstances apply to the person (see section 104‑30); and
      4. the person applies in writing to Open Universities Australia for re‑crediting of the FEE‑HELP balance; and
      5. either:
        1. the application is made before the end of the application period under section 104‑35; or
        2. Open Universities Australia waives the requirement 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.

    Note: A FEE‑HELP debt relating to a unit of study will be remitted if the FEE‑HELP balance in relation to the unit is re‑credited: see section 137‑10.

    1. If the provider is unable to act for one or more of the purposes of subsection (1) or (2), or section 104‑30, 104‑35 or 104‑40, the *Secretary may act as if one or more of the references in those provisions to the provider were a reference to the Secretary.

    Determining whether the person satisfies the threshold criteria can be done with a relatively simple factual analysis of the person’s application and records (with the exception of paragraph (e)(ii) of the relevant subsections, which sets out the basis for waiver of the 12-month application period – see part 42.2).

    If a person does not satisfy any element of the threshold criteria, the student does not meet the main case for re-credit/remission of their fees. Where a decision-maker refuses a person’s application for re-credit/remission on the basis of a failure to meet one or more of the threshold criteria, the student must be provided with a statement of reasons as to why the application was refused. The threshold criteria can be assessed in any order. Once it has been determined that a person does not meet one of these criteria, the application can be refused on that basis. However, if there is any doubt about whether or not a student meets one or more of the threshold criteria (especially where the application period is at issue), it is prudent for a decision-maker to also address the special circumstances criteria.

    If a person meets the threshold criteria, the decision-maker then needs to consider whether they are satisfied that special circumstances apply to the person.

    Step 2 – Do special circumstances apply?

    The special circumstances test is specified in the following sections of HESA for each type of Commonwealth assistance. The specific provisions/sections to which a provider should refer will depend on whether the person seeks re-credit, remittance and/or repayment.

    Re-credit/ remission/repayment Special circumstances test
    Student contribution amount or HECS-HELP debt
    • subsections 36-21(1) and (2)
    • paragraph 36-20(1)(d)

    FEE HELP – higher education providers

    • subsections 104-30(1) and (2)
    • paragraph 104-285(1)(c)
    FEE HELP – Open Universities Australia
    • subsection 104-30(3)
    • paragraph 104-25(2)(c)

    The special circumstances test under each of the above sections is substantively the same but a provider must refer to the correct section in its decision.

    The test has three requirements, and all of those requirements must be satisfied, and supported with evidence, for special circumstances to be established.

    Example 2 – HESA section 104-30 – Special circumstances

    The test for special circumstances is bolded:

    1. For the purposes of paragraph 104-25(1)(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:
      1. are beyond the person’s control; and
      2. do not make their full impact on the person until on or after the *census date for the unit of study in question; and
      3. 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. If the Administration Guidelines specify circumstances in which a provider will be satisfied of a matter referred to in paragraph 36-21(1)(a), (b) or (c), any decision of a provider under this section must be in accordance with any such guidelines.
    3. For the purposes of paragraph 104-25(2)(c), special circumstances apply to the person if and only if Open Universities Australia is satisfied that circumstances apply to the person that:
      1. are beyond the person's control; and
      2. do not make their full impact on the person until on or after the * census date for the unit of study in question; and
      3. 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 provider must refer to the appropriate section(s) of HESA that specifically apply to a person’s circumstances. In determining whether there are special circumstances, a decision of a higher education provider must be in accordance with chapter 3 of the Administration Guidelines [HESA subsections 36-21(2) or 104-30(2), as applicable]. HESA subsection 104‑30(2) does not apply to OUA.

    Step 2.1 – What are the relevant special circumstances?

    The decision-maker needs to identify the relevant special circumstances based on the information and evidence the person has provided in their application and any further information available from the student’s records.

    Step 2.2 – Are the circumstances beyond the person’s control?

    The decision-maker must then decide whether the circumstances identified in Step 2.1 above were beyond the person’s control.

    The Administration Guidelines stipulate 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. This situation must be unusual, uncommon or abnormal. The Administrative Appeals Tribunal has considered the meaning of ‘beyond a person’s control’ in the context of fee remission/re-credit applications based on special circumstances in a number of decisions.

    Step 2.3 – Did the circumstances make their full impact on the person on or after the census date for the unit in question?

    The decision-maker needs to:

    • identify the relevant census date for the unit(s); then
    • determine when the circumstances identified in Step 2.1 occurred and/or when they made their full impact on the person.

    The Administration Guidelines provide that a person’s circumstances did not make their full impact on the person until after the census date for a unit of study if the person’s circumstances occur:

    • before the census date, but worsen after that day
    • before the census date, but the full effect or magnitude does not become apparent until on or after that day; or
    • on or after the census date.

    The Administrative Appeals Tribunal has considered the meaning of ‘full impact’ in the context of fee remission/re-credit applications based on special circumstances in a number of decisions.

    Step 2.4 – Did the circumstances make it impracticable for the person to complete the requirements of the unit?

    After deciding that Steps 2.1 to 2.3 have been satisfied, the decision-maker must be satisfied that the circumstances identified in Step 2.1 made it impracticable, not simply difficult or challenging, for the person to complete the unit.

    The Macquarie Dictionary defines ‘impracticable’ as ‘not practicable; that cannot be put into practice with the available means’ and the Tribunal has previously interpreted the term ‘impracticable’ to mean ‘not capable of being done’. A decision-maker should keep this definition in mind the dictionary definition and the meaning which the Tribunal has applied to the term when deciding whether a person’s circumstances made it impracticable for the person to complete the unit of study.

    Consideration should also be given to whether, at the time the person’s special circumstances emerged, it was already not practicable for the person to meet the requirements of the unit. This situation may arise where a person has not met progressive requirements relating to compulsory assessment and/or attendance at classes for the unit of study within the relevant study period before the claimed special circumstances occurred.

    Example

    • A person may have failed to sit the final examination and/or a special/supplementary examination on the basis of a special circumstance(s) that they claim applied at the time of the examination.
    • However, prior to the special circumstances occurring, the person had not met the ongoing compulsory requirements of the unit. Therefore, their failure to sit the final examination, and/or the special examination, may not of itself make it impracticable for the person to complete the unit of study.
    • The relevant circumstance that made it impracticable for the person to complete the unit of study would then be that the person did not meet the ongoing compulsory requirements of the unit unrelated to the special circumstances which they claim adversely impacted their ability to complete the unit(s) in question.

    In the above example, depending on the person’s circumstances, the provider may have made a decision not to re‑credit the person’s FEE‑HELP balance. As is the case with the other elements of the special circumstances test, the Administrative Appeals Tribunal has considered the meaning of ‘impracticable’ in the context of fee remission/re-credit applications based on special circumstances in a number of decisions which are accessible on the Tribunal’s website.

    After receiving an application, and prior to making a decision, the decision-maker may request further evidence from the applicant. This is useful if a person has not provided all evidence and the decision-maker believes that further evidence or information may assist the person’s application.

    The provider’s decision to refuse to re-credit some or all of a student’s FEE-HELP balance is a reviewable decision under HESA section 206-1. The provider must give an applicant a notice of review rights if they make a reviewable decision. For the Code of Practice for Notification of Reviewable Decisions and Rights of Review, see Appendix K.