48. Complaints processes

VET Student Loan students studying with private providers are eligible for tuition protection, delivered by the government’s Tuition Protection Service, if their provider defaults - that is, if they close, fail to start, or stop offering a course or unit of study. Those providers pay an annual levy to support the service.

If you engage in unacceptable conduct, a student may apply to the Secretary of the department for a recredit of their HELP balance.

The department can take compliance action against you if you fail to meet your obligations under the Act and the Rules. Compliance actions include civil penalties, fines and imprisonment.

48.1 - Student complaints

You must have a grievance procedure in place to deal with complaints from your students about academic matters and non-academic matters. The procedure must contain:

• an internal stage, which deals with lodging and internal hearing of the complaint
• an external stage, which provides for independent external decision review.

The student cannot be charged a fee for any part of the grievance process.

You must keep appropriate records, for at least 5 years, for each use of the grievance procedure.

Your grievance procedure must:

• clearly set out the procedure, including required internal and external stages
• encourage the timely resolution of complaints, including specifying reasonable periods for dealing with each stage of a complaint
• clearly state that there is no charge for the internal stage or external stage
• provide for implementation of decisions made following the grievance procedure
• provide for due consideration of recommendations arising from the external stage
• require the provider to allow parties who have used the procedure to access the records of that use but otherwise keep the records confidential.

48.2 - Internal stage of grievance procedure

The internal stage of the grievance procedure must include:

• a process for the lodging and hearing of a formal complaint
• a requirement for written notice of a decision on the formal complaint to be given to the complainant, with the notice to include:
• the reasons for the decision
• advice about how to appeal the decision
• a process for appealing the decision to an independent senior officer of the provider, or to an internal committee or unit with appropriate expertise
• a requirement for written notice of the decision on appeal to be given to the appellant, with the notice to include:
• the reasons for the decision
• advice about how to have the decision reviewed
• a provision enabling each party to this stage of the procedure to be accompanied or assisted by another person, at that party’s cost.

48.3 - External stage of grievance procedure

The external stage of the grievance procedure must include:

• a process for having a decision on appeal reviewed by an external and independent person or body with appropriate expertise
• a provision enabling each party to the review to be accompanied or assisted by another person at the review, at that party’s cost
• a requirement for written notice of the decision on review to be given to each party, with the notice to include the reasons for the decision.

You are taken to be members of the external dispute resolution process operated by the VET Student Loans Ombudsman for the purpose of meeting this obligation under the Act. [part 49]

48.4 - Unacceptable conduct

A student may apply to the Secretary of the department for a recredit of their HELP balance if:

• you, or someone acting on your behalf, engaged in unacceptable conduct when dealing with an application for a VET Student Loan have engaged in unacceptable conduct when dealing with an application for a VET Student Loan.
• or you failed to comply with the VSL Act (or instrument under the Act) and the failure adversely affected the student.

Unacceptable conduct is:

• ‘unconscionable conduct’ (see below) and ‘misleading or deceptive conduct’
• the ‘making of a representation with respect to any future matter’ (see below), such as the doing of, or the refusing to do, any act, if the maker of the representation does not have reasonable grounds for making the representation
• advertising tuition fees for the course where there are reasonable grounds for believing you will not be able to provide the course for those fees
• use of physical force, or harassment or coercion, in connection with the application or enrolment in the course.

These definitions do not limit one another.

It is unacceptable conduct for you to:

• tell a student that they should enrol in a course because a VET Student Loan will be available for the course in the future when you don’t have any reason to believe this
• suggest that your fee limit [part 11] or conditions of approval [part 10] allow you to enrol a student in a course because a VET Student Loan will be available when your fee limit or condition of approval does not allow this.

48.5 - Unconscionable conduct

In deciding whether conduct is unconscionable, the Secretary may consider:

• the relative strengths of the bargaining positions of the persons concerned
• whether the student was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of another person
• whether the student was able to understand any documents related to the application for the VSL
• whether you, or the person acting on your behalf, exerted any undue influence or pressure on, or used any unfair tactics against, the student or a person acting on behalf of the student
• whether you, or person acting on your behalf, failed to disclose anything to the student
• the extent to which you, or person acting on your behalf, acted in good faith.

It doesn’t matter whether or not a particular individual is identified as having been disadvantaged by the conduct.

48.6 - Making of a representation with respect to any future matter

‘Making a representation’ means you’ve used words or actions to state or suggest something. For example, you may have made a statement in your promotional material or verbally to a student when they were enrolling.

‘Future matter’ means anything that is to happen in the future, whether it is a prediction, a forecast or a certainty. For example, you may state that a course will be an approved course [part 16] in the future or that you will be an approved provider [part 3] in the future under the VET Student Loan program.

‘Reasonable grounds’ means knowledge or evidence which would lead a reasonable person to come to the same conclusion. For example, if you have received a letter of confirmation from the department about a particular matter, this would be ‘reasonable grounds’ for believing that it would occur. However, if you have heard the same thing from a friend of a friend about a particular matter, this would not be reasonable grounds.

48.7 - Application process for a re-credit based on unacceptable conduct

A student has 5 years from the census day for the course, or part of the course concerned, to apply for a re-credit of their HELP balance based on provider unacceptable conduct. However, the Secretary may extend this period.

The application must include the following (if known):

• details of the course to which the application relates
• details of the provider of that course
• the loan amount that is to be re‑credited
• the applicant’s student identifier (if any), and
• any documents supporting the application.

After assessing the application, the delegate for the Secretary must give you a notice in writing stating we are considering making the decision. The notice will describe the proposed decision and the reasons for it.

You may give a written submission to the department (within 28 days) on why that decision should not be made. The delegate must consider any submissions received within the 28-day period.

The delegate will give the student and you a written notice of the decision and reasons for the decision as soon as practicable after making the decision.

Legislation: Act s 25(2)(h), s 71–72, Rules s 88, s 105(g), s 148