G. Guide to special circumstances decision-making

This guide is intended to assist providers to assess an application for a re‑credit of HELP balance, reversal of STARTUP-HELP assistance, remission of a person’s HELP debt and/or repayment of any amounts the person paid towards their student contribution amount for a unit, and re‑crediting of a person’s SLE amount. 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 HELP balance re-credited in relation to a unit, resulting in remission of the person’s HELP debt
• have their STARTUP-HELP assistance reversed
• have their debt remitted and/or their payments towards their student contribution amount for a unit repaid
• have their SLE amount re-credited in relation to a unit.

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 HELP balance should be re-credited, their HECS-HELP debt should be remitted, their SLE amount re-credited and/or their student contribution amount should be repaid:

Regardless of which provision of HESA applies, when deciding whether a person is eligible to have their 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 examples provided below, the relevant sections of HESA that apply to re‑crediting a person’s HELP balance in relation to their FEE-HELP debt have been used. When writing the reasons for a decision, providers must refer to the section(s) of HESA that apply to the actual decision e.g. the sections that relate to the remission or repayment of specific types of HELP debt, or the provisions relating to the recrediting of SLE amounts. Those sections are noted above. 

The example may also broadly assist in applying the criteria in HECS-HELP matters, noting that the relevant HESA provisions will be different in relation to decisions for other HELP debts or the recrediting of SLE amounts. For actual cases, ensure that the relevant references from HESA and the Administration Guidelines are examined rather than substituted with the references provided in this Appendix.

Step 1 – Have the threshold criteria been met?

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

The term ‘threshold criteria’ is used to describe the criteria listed in a particular section which must be satisfied before a consideration of whether a person satisfies special circumstances can be undertaken.

Example 1 below illustrates the threshold criteria for Re‑crediting a person’s HELP balance in relation to a person’s FEE-HELP assistance, and is set out in paragraphs 104-25 (1)(a), (aa) (b), (d) and (e) and 104-25(2)(a), (b), (d) and (e) (for Open Universities Australia).

Before determining whether special circumstances apply to a person, the decision-maker needs to be satisfied that all of the threshold criteria have been met.

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

Section 104-25 of HESA provides that:

(1A) If section 104-42 applies to recredit a person’s *HELP balance with an amount equal to the amounts of *FEE‑HELP assistance that the person has received for a unit of study, then this section does not apply in relation to that unit.

(1) A higher education provider must, on the *Secretary’s behalf, re‑credit a person’s *HELP balance with an amount equal to the amounts of *FEE‑HELP assistance that the person received for a unit of study if:

1. the person has been enrolled in the unit with the provider; and
2. access to the unit was not provided by *Open Universities Australia; and
3. 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
4. the provider is satisfied that special circumstances apply to the person (see section 104‑30); and
5. the person applies in writing to the provider for recrediting of the HELP balance; and
6. 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.

(2) *Open Universities Australia must, on the *Secretary’s behalf, re‑credit a person’s * 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 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 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.

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

(3) If the provider is unable to act for one or more of the purposes of subsection (1) 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.

(4) If *Open Universities Australia is unable to act for one or more of the purposes of subsection (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 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 [part 44]). A high threshold must be met before a provider can waive the requirement that the application be made before the end of the application period [HESA subsection 104-25(1)(e)(ii)]. The high threshold is that it must not be, or was not, possible for the application to be made before the end of the application period [HESA subsection 104-25(1)(e)(ii)].

If a person does not satisfy all elements 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.

If a person meets the threshold criteria, the decision-maker can then go on to consider whether 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 and in relation to a person’s Student Learning Entitlement. The specific provisions/sections to which a provider should refer will depend on whether the person seeks re-credit, remittance and/or repayment.

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

Section 104-30 of HESA provides that:

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.

   Note: The matters referred to in paragraphs 36-21(1)(a), (b) and (c) (which relate to special circumstances that apply to repaying an amount of student contribution or HECS-HELP) are identical to the matters referred to in paragraphs (1)(a), (b) and (c) of this section.

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.

In determining whether there are special circumstances, a decision of a higher education provider must be in accordance with Part 3 of the Administration Guidelines [HESA subsections 36-21(2) or 104-30(2), as applicable]. OUA are also required to make special circumstances assessments [HESA subsection 104- 30(3)].

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 higher education provider will be satisfied that a person’s circumstances are beyond that person’s control if a situation occurs which the provider reasonably considers 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. [Administration Guidelines section 12]

The Administrative Appeals Tribunal (now the Administrative Review 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?

In order to make an assessment about whether the special circumstances had their full impact after the census date, 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 [Part 3, section 13] provide that 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:

• 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.

This means that a person may be affected by their special circumstances prior to the census date, but because they worsen after the census date, the ‘full impact’ of those circumstances is said to have occurred after the census date.

The Administrative Appeals Tribunal (now the Administrative Review 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, and 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 Administrative Appeals Tribunal (now the Administrative Review Tribunal) has previously interpreted the term impracticable to mean ‘not capable of being done’. This presents a high threshold that needs to be met in order to satisfy the ‘impracticability’ element of the test. A decision-maker should keep this meaning in mind when deciding whether a person’s circumstances made it impracticable for the person to complete the requirements of the unit of study.

The Administration Guidelines provide that 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 if the person undertook, or was to undertake, the unit in the following circumstances [Part 3, subsection 14(1)]:

1. 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
2. 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
3. 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
4. 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.

In making its assessment, a higher education provider should also consider whether it is ‘impracticable’ for a person to complete the requirements of the unit, and the requirements of the unit are set out in subsection 14(2) of the Administration Guidelines:

The requirements for a unit of study referred to in subsection (1) are that the person:

1. undertakes the necessary private study required, or attends sufficient lectures or tutorials or meets other compulsory attendance requirements in order to meet their compulsory course requirements; 
2. completes the required assessable work; 
3. sits the required examinations; 
4. completes any other course requirements.

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. Consideration to this should be given because it may mean that it was not the ‘special circumstances’ that made it impracticable for the person to complete the requirements of the unit but rather the student was already disengaged and behind in the course such that it was already impracticable for them to complete the requirements of the unit.

Example

The following is an example of what a provider may take into account in determining the ‘impracticable’ requirement for the special circumstances criteria:

• 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 make a decision not to re‑credit the person’s HELP balance. 

As is the case with the other elements of the special circumstances test, the Administrative Appeals Tribunal (now the Administrative Review 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.

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 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 [Appendix H].