42. Re-crediting, remission and repayment

42.1 - Remission of debts under Higher Education Funding Act

Under the Higher Education Funding Act 1988 (HEFA) section 106L, a person could apply in writing to the Secretary for remission of their Higher Education Contribution Scheme (HECS), Postgraduate Education Loans Scheme (PELS) or Bridging for Overseas-Trained Professionals Loan Scheme (BOTPLS) debt in special circumstances. The lodgement deadline for such an application was 12 months after the day a person withdrew from a unit in their course of study for the semester. The time limit for applications to remit debts due to special circumstance incurred under HEFA has lapsed. There is no discretion for the Minister to waive this time limit. There are no other provisions under HEFA for the Minister to waive a debt and no other statutory basis exists within the Minister’s portfolio to do so [part 44].

There should be no remissions relating to pre-2005 debts except in rare cases, such as when an application that was made within the 12-month period has not been finalised. Non-finalised remissions include those made as a result of a review and appeal to the Administrative Appeals Tribunal (AAT), and remissions that were finalised in previous years but not reported.

The forms provided in Appendices H and I notify the ATO and the department of variations to pre-2005 debt due to administrative error or oversight, except for in the rare cases outlined above, or for remissions finalised, but not reported, in previous years.

Appendix H of the AIP provides a form to submit a variation of pre-2005 debt due to administrative error to the ATO. This form can be sent to TCSISupport@education.gov.au.

Appendix I of the AIP provides a form to submit a variation of pre-2005 debt due to administrative error to the department. This form can be sent to TCSISupport@education.gov.au.

42.2 - Re‑crediting a person’s HELP balance

A provider must, if the threshold criteria and the special circumstances test [Appendix J] are satisfied, re‑credit a person’s HELP balance with an amount equal to the amount of FEE-HELP the person received for the unit of study [HESA subsection 104-25(1)].

If a person’s HELP balance is re‑credited, any FEE‑HELP debt that they incur for the unit is taken to be remitted [HESA subsection 137-10(4)] and the provider must repay any amounts of FEE‑HELP for the unit to the Commonwealth [HESA section 110-5]. In these circumstances, a provider has the discretion to repay any up-front payments the person made in respect of the unit in accordance with its own rules, which should be accessible to the person.

For further information on the threshold criteria and special circumstances test [Appendix J].

42.3 - Remission of HECS-HELP debt and/or repayment of up-front payments of student contribution amounts

If a provider determines the threshold criteria and the special circumstances test are satisfied by a person in respect of a unit of study:

then any HECS-HELP debt in relation to the unit of study is taken to be remitted [HESA subsection 137-5(4)] and the provider must repay an equivalent amount to the Commonwealth [HESA subsection 36-20(2)]; and/or
the provider must repay any up-front payments of student contribution amounts the person made in relation to the unit of study [HESA subsection 36-20(2)]

For units of study with a census date prior to 1 January 2012 see below. For further information on the threshold criteria and special circumstances test [Appendix J].

Units with census dates before 1 January 2012

Any CANs issued for units of study with a census date falling on or before 31 December 2012 must accurately report the student’s available SLE.

The Higher Education Support Amendment (Demand Driven Funding System and Other Measures) Act 2011 (Amendment Act) made significant amendments to HESA, including repealing HESA Part 3.1, which includes sections 79-1 to 79-15. However, the compilation of HESA (registered 9 September 2011) that applied prior to the Amendment Act continues to be applicable to special circumstances applications made by persons in relation to units of study with a census date prior to 1 January 2012.

In applying this compilation of HESA to such units, providers should note that:

the SLE Guidelines were repealed at the beginning of 2012 following the abolition of SLE as part of the implementation of the demand-driven system
chapter 2 and chapter 5 of the SLE Guidelines were still relevant to the operation of HESA and were moved into the Administration Guidelines
chapter 3 of the Administration Guidelines does not apply, as a matter of law, to units of study with a census date prior to 1 January 2012; and
in making a decision about whether a person meets the special circumstances test in HESA, for a unit of study prior to 1 January 2012, providers should not apply the SLE Guidelines, as they are no longer in force.

Application of the Administration Guidelines to units with census dates before 1 January 2012

The Administration Guidelines apply to special circumstances decisions for units of study with census dates on or after 1 January 2012, as a legislative instrument and by force of the relevant provisions in HESA [HESA subsections 36-21(2) and 104-30(2)]. As such, they do not apply to units of study with census dates prior to 1 January 2012, and providers are not bound to apply chapter 3 of the Administration Guidelines when making decisions in respect to such units of study. The department’s policy position is, however, that in applying the special circumstances test, providers are to make their decisions in accordance with chapter 3 of the Administration Guidelines. In other words, as a statement of departmental policy relevant to special circumstances decision-making by providers, the guidelines should be taken into account when making these decisions.

Providers should ensure that any guidance provided to students in relation to special circumstances decisions reflects this position.

42.4 - Re‑crediting, remission and/or repayment process

Advising students of the process

If a person withdraws from a unit of study after the census date, the provider should advise the person they may apply, in writing, to the provider, for re‑credit, remission and/or repayment whichever is relevant to the person. This withdrawal must be relevant. For a guide to special circumstances decision-making, see [Appendix J].

When can a person apply for re‑credit, remission and/or repayment?

Where the student withdrew from their unit after the census date or the person has not completed the requirements for the unit [HESA section 104-25], a person may apply to the provider for:

a re‑credit of HELP balance for a unit [HESA section 104-25];
a remission of HELP debt and/or repayment of the student contribution amount for a unit [HESA section 36-20];
a re-credit of SLE amount for the unit [HESA Division 79]

A student may also apply to the department if their provider is unable to accept their application for any reason [HESA subsection 104-25(3)].

A person’s HECS-HELP debt in relation to a unit is taken to be remitted if the person’s provider repays the amount of their HECS-HELP, for the unit, to the Commonwealth [HESA subsection 137-5(4)]. A person’s FEE‑HELP debt in relation to a unit is taken to be remitted if the person’s HELP balance is re‑credited [HESA subsection 137-10(4)].

An application for a re‑credit, remission and/or repayment must be made, in writing, within 12 months of the withdrawal date, or if the person has not withdrawn, within 12 months of the end of the period of study in which the unit was, or was to be, undertaken.

Where a provider allows a person to defer completion of their studies regarding a unit of study in issue, the 12-month period applies from the end of the extended period for the unit in issue. If an application is made outside the application period, the provider should consider whether it is prepared to waive the application deadline on the ground that it was not possible for the application to be made before the end of that period [HESA sections 36-20, 36-23, 79-1, 104‑25 and 104‑40].

In such decision-making, ‘possible’ should be given its plain and ordinary meaning. In that regard, the Macquarie Dictionary defines ‘possible’ as ‘that may or can be, exist, happen, be done, be used’.

The special circumstances test, as set out in HESA sections 36-21,79-5 and 104-30 and explained in chapter 3 of the Administration Guidelines, is not applicable to the waiver.

In circumstances when an application was made outside the application period, and the provider does not waive that requirement, the person should be advised that the application has been refused on the basis that the person has not satisfied one of the threshold criteria [Step 1, Appendix J]. The applicant should also be provided with written reasons why the application period was not waived. In these circumstances, it is not necessary for the provider to address whether the special circumstances test has been satisfied. A decision made on this basis will be a reviewable decision under HESA and the provider has an obligation to inform the person of this and provide the person with the opportunity to seek reconsideration of the decision.

When can’t a person apply for re‑credit, remission and/or repayment?

A person cannot apply for a re‑credit, remission and/or repayment if they have successfully completed the unit. A person who receives a fail grade is considered not to have successfully completed the requirements of the unit.

42.5 - When must a provider re‑credit, remit and/or repay?

Special circumstances

A provider must re‑credit, remit and/or repay a person if they are satisfied, in respect of a unit of study, that the threshold criteria and the special circumstances test apply to the person.

Special circumstances apply to a person if, and only if, the provider is satisfied that circumstances apply to the person that:

are beyond the person’s control
do not make their full impact on the person until on, or after, the census date for the unit of study; and
make it impracticable for the person to complete the requirements for the unit during the period in which the person undertook, or was to undertake, the unit [HESA sections 36-21,79-5 and 104-30].

Chapter 3 of the Administration Guidelines specifies the circumstances in which a provider can satisfy itself that special circumstances apply to the person. This chapter does not apply to OUA as a matter of law, but rather as a matter of departmental policy.

The person’s application for re-credit, remission or repayment may include any independent supporting documentation, for example, a letter from the person’s doctor or counsellor, to support the person’s claims.

Each application should be examined and determined on its merits. The provider should consider the person’s claims, together with any supporting documentary evidence that substantiates these claims.

Special circumstances criteria

Chapter 3 of the Administration Guidelines specifies circumstances in which a provider will be satisfied that special circumstances apply to the person. This section summarises these requirements. More detailed guidance for decision-making is at [Appendix J].

Special circumstances do not include, for example:

lack of knowledge or understanding of the requirements under the schemes; or
a person’s incapacity to repay a HELP debt, as repayments are income contingent, and the person can apply for a deferral of a compulsory repayment in certain circumstances [HESA sections 154-45 and 36-21].

Special circumstances beyond a person’s control

Circumstances are beyond a person’s control if a situation occurs that 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 [Administration Guidelines paragraph 3.5]. This situation must be unusual, uncommon, or abnormal.

For example, a lack of knowledge of how HECS-HELP or FEE-HELP works is not considered beyond a person’s control.

Special circumstances that do not make full impact until on or after the census date

A 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 [Administration Guidelines paragraph 3.10].

A person does not need to demonstrate they were prevented from withdrawing from the unit prior to the census date.

Special circumstances arising from pre-existing conditions

A pre-existing condition is not necessarily a basis to reject an application to re‑credit a person’s HELP balance or remit a person’s HELP debt.

For example, a person may have an illness, or other underlying, pre-existing condition or incapacity, prior to the census date for a unit of study, but have a reasonable expectation that they will recover and be able to complete the requirements of the unit.

A delegate must consider whether the person’s condition changed on or after the census date and when the full effect or magnitude of the circumstances became apparent, considering any additional circumstances, including continuation of a pre‑existing condition, that may have affected the person on or after the census date.

Special circumstances that made it impracticable for the person to complete the unit

A 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 which the person undertook, or was to undertake, the unit, if circumstances such as the following occur [Administration Guidelines paragraph 3.15]:

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
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
Employment-related circumstances – for example, where a person’s employment status or arrangements have changed so the person is unable to continue their studies, and this change is beyond the person’s control
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 courses

A person is unable to complete the requirements for a unit, for example, if the person is unable to:

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
complete the required assessable work
sit the required examinations; or
complete any other course requirements because of their inability to meet the above.

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.

For example, a person may have failed to sit the final examination and/or a special/supplementary examination on the basis of a special circumstance that applied at the time of the examination. If that person has not met the ongoing compulsory requirements of the unit of study, their failure to sit the final or special examination, does not of itself make it impracticable for them to complete the unit of study.

In this case, the provider may make a decision not to re‑credit the person’s HELP balance or remit the person’s HELP debt.

Providers need to state these requirements for continuous assessment and attendance in the provider’s rules prior to the commencement of the unit and substantiated if the need arises.

A person, who has met the compulsory requirements of the unit, but still failed the unit, is also taken to have not completed the requirements of the unit. In this circumstance, providers should consider whether or not the person applied for a supplementary exam when evaluating whether the threshold criteria, including special circumstances have been met.

Application of Administration Guidelines to OUA

Open Universities Australia means Open Universities Australia Ltd [HESA Schedule 1, subsection 1(1)]. In HESA, OUA is considered separately from approved higher education providers. The Administration Guidelines do not apply to special circumstances decisions to be made by OUA, as OUA is not a provider under HESA [HESA subsection 104-30(2)].

The department’s policy position is, however, that in applying the special circumstances test, OUA is to make its decisions in accordance with chapter 3 of the Administration Guidelines [HESA paragraph 104-25(2)(c) and subsection 104-30(3)]. In other words, as a statement of departmental policy relevant to special circumstances decision-making by OUA, the guidelines should be taken into account in making these decisions.

OUA should ensure that any guidance provided to students in relation to special circumstances decisions reflects this position.

Student Protections

Student protection amendments made by the Higher Education Support Amendment (Job-ready Graduates and Supporting Regional and Remote Students) Act 2020 have expanded circumstances in which a provider must re-credit a person’s HELP balance.

Not entitled to assistance

A provider must re-credit a person’s HELP balance with an amount equal to the amounts of HECS‑HELP or FEE-HELP assistance that the person received for a unit of study if the provider, or the Secretary of the department, (for FEE‑HELP the Secretary only) is satisfied that the person was not entitled to receive HECS‑HELP or FEE-HELP for the unit of study with the provider [HESA subsections 97-50(1), 104‑44(2)].

For example, a person is not entitled to HECS‑HELP assistance for a unit of study if the person is not a Commonwealth supported student in relation to the unit [HESA section 90‑1]. Whether a person is a Commonwealth supported student in relation to a unit is set out in section 36‑5 of HESA, and Subdivision 36‑B sets out a number of circumstances in which a higher education provider must not advise a person that he or she is a Commonwealth supported student [part 20].

Provider completes request for assistance

A provider must also re-credit a person's HELP balance with an amount equal to the amounts of HECS‑HELP or FEE‑HELP assistance that the person received for a unit of study if the higher education provider completes any part of the request for Commonwealth assistance in relation to the unit that the student is required to complete [HESA subsections 97‑45, 104‑44(1)].

42.6 - Academic review and re‑credit or remission of HELP debt

A provider should have procedures in place that allow a person’s academic grades to be revised independent of re‑crediting of their HELP balance, remission of their HELP debt and/or refund of up-front payments.

Decisions relating to re-credit, remission and/or repayment are made by providers as the delegate of the Secretary of the department. On the other hand, decisions relating to academic standing are a matter entirely for the provider. The granting of a withdrawal without academic penalty does not have to lead automatically to the remission of a HELP debt or the reimbursement of fees.

42.7 - Timeframe for making decisions

A provider should consider the person’s application as soon as practicable. Chapter 3 of the Administration Guidelines specifies that a provider must publish the timeframe within which it will consider applications for the re‑crediting of a person’s HELP balance, remission of a person’s HELP debt and/or repayment of their student contribution for units of study. Providers must also publish the timeframe within which it will notify applicants of its decision.

Notifying applicants of the decision

A provider must notify the person of its decision and the reasons for making it [HESA sections 36-23, 79-15 and 104-40].

Chapter 3 of the Administration Guidelines specifies that a provider must also advise the applicant of their rights for a review of the decision if the applicant is unsatisfied with the outcome [HESA section 209-10]. The relevant passage states that:

In accordance with section 27A of the Administrative Appeals Tribunal Act 1975, the higher education provider is obliged to advise the applicant that, if they are dissatisfied with the initial decision, they may apply to the higher education provider for a review of that decision. The application must be made in accordance with the provisions of and the timeframes specified in the Administrative Appeals Tribunal Act 1975 [Administration Guidelines 2012 3.20.5].

The person must be advised that 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 relevant passage states that:

In accordance with section 209-10 of the Higher Education Support Act 2003, the application must be made by written notice and must be made within 28 days, or such longer period as the reviewer allows, after the day on which the person first received written notice of the decision [Administration Guidelines 2012 3.20.10].

Notifying the department of the decision

Where a decision results in the re‑crediting of a person’s HELP balance, the remission of a person’s HELP debt, and/or the repayment of any amount the person paid in relation to their student contribution amount for a unit, the provider must notify the department through the Revisions File [part 42.1]. The provider must repay to the Commonwealth any amounts of HECS-HELP or FEE-HELP the provider received from the Commonwealth on the person’s behalf [HESA subsection 36-20(2) and section 110-5].

42.8 – Re-crediting a person’s SLE amount

A provider must, if the threshold criteria and the special circumstances test (see Appendix J) are satisfied, re-credit a person’s SLE amount with an amount equal to the EFTSL amount of a unit of study [HESA section 79-1].
A provider must also re-credit a person’s SLE amount with an amount equal to the EFTSL value of a unit of study if the person’s HELP balance is re-credited under any of the following provisions with an amount equal to the amount of HECS-HELP assistance the person received for the unit of study [HESA section 79-20]:

HESA subsection 97-25 (special circumstances);
HESA subsection 97-27(1) (the person does not have a tax file number);
HESA subsection 97-42(1) (the higher education provider defaults);
HESA subsection 97-45(1) (the higher education provider completes a request for Commonwealth assistance);
HESA subsection 97-50(1) (the person was not entitled to assistance).