47. Special circumstances

Your decision about whether to recredit a student’s HELP balance is a reviewable decision. When you make a special circumstances decision, you must let the student know the time limit for applying for a review of it. The time limit is 28 days after the day on which they were notified of the decision - or a longer time if you choose to extend it.

Review applications outside the time period

If the student applies for review later than 28 days after you notified them of the decision and you haven’t extended this time, you should let them know that you’ve refused their request because they didn’t apply within the required time. You don’t have to consider whether there are special circumstances.

Special circumstances beyond a person’s control

Circumstances that are beyond a person’s control are things like:

a car accident
a serious illness getting worse.

Special circumstances that didn’t make their full impact until on or after the census day

This category includes circumstances that occurred:

on or before the census day but got worse after that day
on or before the census day but without their full effect or magnitude becoming apparent until after that day
on or after the census day.

Students don’t need to demonstrate that they were unable to withdraw from the course on or before to the census day.

Special circumstances arising from pre-existing conditions

A student may face special circumstances if something that first: occurred on or before the census day worsens after that day or
if its full effect or magnitude becomes apparent after that day.

For example, a student may have an illness or other pre‐existing condition or incapacity on or before the census day but:

their condition later gets worse or they develop complications or experience a serious episode
their recovery doesn’t go to plan or they later realise their full level of disability or incapacity to study.

You must consider whether the person’s circumstances changed on or after the census day and when the full effect or magnitude of the circumstances became apparent.

Circumstances that made it impracticable to complete a course

‘Impracticable’ means ‘not practicable – that which cannot be put into practice with the available resources’. Keep this definition in mind when deciding whether a student’s circumstances made it impracticable for them to complete a course or part of a course.

You must consider whether the student could:

meet course requirements by doing enough private study, attending training sessions and other activities or engaging online
complete any required assessable work or demonstrate the required competencies
complete any other requirements arising from their inability to do the above.

Circumstances which make it impracticable for a student to complete their course may be (among other things):

medical circumstances – for example, where the student’s medical condition has changed so much that they’re unable to continue studying
family or personal circumstances – for example, death or severe medical problems in the student’s family, or unforeseen financial difficulties which affect the student so much that it’s unreasonable to expect them to continue studying
employment related circumstances – for example where the student’s employment status or arrangements have changed so must that they’re unable to continue their studies and this change is beyond their control.

47.1 - Reviewable decisions

Certain decisions by either the provider, or the Secretary of the department, are ‘reviewable decisions’. This means that the affected person can ask the decision maker to review the decision and apply to the Administrative Review Tribunal.

Reviewable decision types are listed in section 74 of the Act.

A review of a decision may be requested by the person affected by the original decision. However, you can review the decision without a request if you are satisfied there is sufficient reason to do so.

47.2 - Decision review by the provider

Students can apply for review of your decision not to recredit the student’s HELP balance for special circumstances.

You must review a decision if:

it’s a reviewable decision under the Act – that is, a decision about recrediting a student’s HELP balance for special circumstances, and
the person affected by the decision asks you to review it.

If a student requests a review, you must appoint a review officer to reconsider the decision. The review officer must be appointed by your CEO or a delegate of the CEO (a staff member with the power to act on the CEO’s behalf).

You may find it useful to keep an up-to-date register of appointments of review officers.

You must ensure a student is not victimised or discriminated against for:

seeking a review or reconsideration of a decision
using the provider grievance processes or procedures
applying to have their HELP balance recredited.

A review officer must not:

review a decision they were involved in making
be in a lower position than the person who made the original decision.

Review officers should examine and decide on each application on its merits. They should consider the student’s claims and any independent documentary evidence that supports these claims.

The review officer must reconsider the decision and:

confirm the decision, or
vary the decision, or
set the decision aside and substitute a new decision.

The review officer must give the student written notice:

stating their decision
stating their reasons for making it
advising the student of their right to apply to the Administrative Review Tribunal (ART) to have the decision reviewed [Administrative Review Tribunal Act 2024 Part 10].

If the review officer doesn’t give the student a notice of decision within 45 days after receiving the review request, it is taken that the reviewer has confirmed the original decision.

Notice of rights of review

When a reviewable VET decision has been made or reconsidered, you must provide the student with a notice of rights of review along with the reasons for the decision/reconsideration.

The first rights of review notice need to be provided after a reviewable decision has been made.

Appendix I gives an example of a notice of review rights. However, you are responsible for ensuring you satisfy the legislative requirements for such a notice.

47.3 - Decision review by the Secretary

The Secretary may act in place of you and re-credit a student’s HELP balance under section 68 of the Act, for special circumstances. The Secretary may exercise this discretion where you are unable to do so, are being wound up, have been dissolved or where you have unreasonably failed to act.

Students can apply for review of a decision by the Secretary:

to approve or not approve a VET Student Loan
to revoke the approval of an approved course provider
not to recredit the student’s HELP balance for special circumstances
to recredit the student’s HELP balance for unacceptable conduct.

Further review by the Administrative Review Tribunal

If the student isn’t satisfied with the provider’s or the Secretary’s review, they can apply to the Administrative Review Tribunal.

See Appendix J for the Review Procedure Flowchart

47.4 - Administrative Review Tribunal

If a student is not satisfied with the provider’s review of a decision, they can apply to the Administrative Review Tribunal (ART) for a review of the decision. They may supply additional information to the ART that they did not previously supply to the provider’s review officer.

We will receive notification from the ART that a person has lodged an application for a review of a review officer’s decision. We are the respondent for cases that are before the ART.

Once we have received notification from the ART that the person has applied for the reconsideration, under section 23 of the Administrative Review Tribunal Act 2024, we must lodge the following documents with the ART within 28 days:

a statement of reasons for the decision and
a copy of every other document that is in the possession or under the control of the decision-maker and relevant to the Tribunal's review of the decision.

Note:  A decision-maker may, but is not required to, give the ART the same statement of reasons given to an applicant.

We will notify you, in writing, that an appeal has been lodged. To enable us to meet the 28-day timeframe, you must provide us with copies of all the documents relevant to the appeal, within 5 business days of being requested.

We will ensure documents are provided in the prescribed form. The documents which are required to be given to the ART by a decision-maker on commencement of a review must:

be in a text-searchable PDF
be organised chronologically
remove duplicate documents where not required for context
be paginated
be provided with an index.

After receiving the documents, we may choose to review the original decision.

Your review officer may also reconsider the decision even though an appeal has been made to the ART. They may do this at any time up until the ART makes a final decision. If a decision is made to re-credit a person’s HELP balance, you must advise us.

However, until a person withdraws their ART appeal, or the appeal is dismissed or otherwise dealt with by the ART, we are still required to comply with the requirement under section 23 of the Administrative Review Tribunal Act 2024 to lodge the statement, and relevant documents described in the 2 dot points above, with the ART. Therefore, you must still forward all relevant documents to us within 5 business days, unless advised not to do so by us. We will deal with cases from that point and advise you of the outcome.

Legislation: Act s 18, s 36, s 68, s 71, s 74, s 76, Rules s 90, 145–146