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43.1 - Provider review of decision
A provider must have review procedures for reconsidering decisions relating to a person's assistance, whether special circumstances apply to the person, and a decision that undertaking a unit of study will impose an unreasonable study load on a person [HESA subsection 19-45(1)(c) and section 36-12]. The review procedures must be published, publicly available, and up to date [HESA subsection 19-45(6); Administration Guidelines 2012 paragraph 3.20.1]. They must comply with any requirements in chapter 4 of the HEP Guidelines, HESA sections 19-45, 19-50 and 19-55, and Division 209. For the Code of Practice for Notification of Reviewable Decisions and Rights of Review [Appendix K].
A provider may include other review procedures with which its review officers must comply, provided these procedures are consistent with HESA requirements and HEP Guidelines [HESA subsections 19-45(1)(c) and 19-45(3)]. These other review procedures must not limit a person’s right to apply for a review of a decision [Administrative Appeals Tribunal Act 1975 (AAT Act) subsection 27A(1)].
Providers must provide details of the letters that they are required to send to a person who has requested the review of a decision, including the required content of the letters.
Right for a statement of reasons for decisions
The notice to an applicant of a provider’s decision must include a statement of reasons for that decision [HESA subsection 36-23(2)]. Further, an applicant has the right to request a written statement of reasons for a decision from a decision-maker, containing the findings on material questions of fact, reference to the evidence used in the findings, and reasons [AAT Act subsection 28(1)]. The request must be fulfilled as soon as practicable and no later than 28 days after receiving the request [AAT Act subsection 28(1)]. Decision-makers may contest the applicant’s entitlement to a statement of reasons and the merits of this contest will be decided by the AAT [AAT Act subsection 28(1AA)]. The decision-maker can refuse a request for a statement of reasons if the request was made after 28 days from the decision or within a reasonable time [AAT Act subsection 28(1A)].
The applicant is not entitled to request a statement of reasons if the decision has already set out a statement of reasons or if a statement of reasons has already been provided [AAT Act subsection 28(4)]. The provider should try to provide an adequate statement of reasons at first instance to avoid an AAT declaration that an additional statement of reasons should be granted containing further and better particulars in relation to the matter [AAT Act subsection 28(6)].
Request for reconsideration of decision
A person has the discretionary right to request a reconsideration of a decision to not re‑credit, remit and/or repay [HESA subsection 209‑10(1)]. The time limit for a person requesting 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 person must state the reasons why they are applying for a reconsideration of the decision [HESA subsection 209-10(3)].
If a full fee-paying student has paid their fees up-front, and did not request FEE-HELP assistance, the review procedures under HESA do not apply [HESA subsections 104-25(1)]. In this instance, the student cannot under HESA request a review or refer the matter to the AAT. Further, reviews of decisions on matters related to suitable replacement courses for students – when a higher education provider defaults in relation to a student – cannot be referred to the AAT [HESA subsection 212-1(2)].
Acknowledging receipt of applications for review
A higher education provider must acknowledge in writing when an application for review has been received [HEP Guidelines paragraph 4.10.5]. The higher education provider must also inform the applicant that, if the reviewer has not contacted the applicant with a decision within 45 days of receiving the application for review, then the reviewer is taken to have confirmed the original decision [HEP Guidelines paragraph 4.10.5; HESA subsection 209-10(6)]. This lapsed response time from a decision maker to a received application can also be interpreted as a decision to reject the application [HESA section 206-5].
Reconsideration of decisions made out of time
Where an applicant requests that a provider reconsider a decision not to re-credit, remit and/or repay, and the application is made outside of the 28 day time limit, or such longer period as the provider allows, the provider is not obliged to reconsider the decision [HESA subsection 209-10(2)]. When deciding whether to accept an out-of-time application for reconsideration, a provider should take into account reasons provided by the applicant for making a late application and the amount of time that has expired. The special circumstances test does not apply to decisions about whether to extend the time to seek reconsideration of a decision.
If the provider does not extend the time limit, the applicant should be advised that their application has been rejected because it was made out of time and provided with written reasons why the time limit was not extended. The provider should not address the merits of the application for reconsideration.
Where a provider declines to reconsider an application because the appeal was made out of time, there is no obligation under HESA to refer the student to the AAT. Providers should consider carefully whether, as a matter of procedural fairness, they should allow students to access their internal appeals and complaints process for review of a decision not to extend time.
This review application period is distinguished from an initial application period. The initial application period is the period where a student can submit their initial application to re-credit, remit and/or repay, rather than the period from where a student submits an application to have a decision reviewed. For the initial application period, students have 12 months to submit their initial application, either from the day after a specified notice for withdrawal from a unit of study takes effect, or after the end of the period when the student undertook the unit [HESA section 36-22].
Paragraph 4.10.5 of the HEP Guidelines requires that a provider must acknowledge receipt of the request for reconsideration. If the request for reconsideration is received within time, this acknowledgement must also:
- inform the person the reviewer is taken to have confirmed the original decision if they have not received a decision within 45 days of the reviewer receiving their application [HEP Guidelines paragraph 4.10.5; HESA subsection 209-10(6)]
- inform the person of their right to apply to the AAT for a review of the reviewable decision that has been confirmed, varied or set aside under [HEP Guidelines paragraph 4.10.10; HESA section 209-5 or 209-10]; and
- provide the contact details of the closest AAT Registry and the approximate costs of lodging an appeal with the AAT [HEP Guidelines paragraph 4.10.10].
Providers must inform applicants that an application to the AAT must generally be made within 28 days from the date the applicant receives the reviewer’s decision [HESA subsection 209-10(2)].
A provider must also:
- appoint a review officer who is either the chief executive officer of the provider or a delegate of the chief executive officer of the provider [HESA section 19-50]
- appoint a review officer who is not the same officer who made the original decision and who occupies a position that is senior to that occupied by the original decision-maker [HESA section 19-55]
- notify the person, in writing, of the reviewer’s decision and the reviewer’s reasons for making the decision (the reviewer’s available options are to confirm the decision, vary the decision, or set the decision aside and substitute a new decision) [HESA subsections 209-5(3) and 209-5(5)]
- advise the person of their right to appeal to the AAT for a review of the reviewer’s decision if the person is unsatisfied with the outcome [AAT Act section 27A; Administration Guidelines 2012 paragraph 3.20.5]; and
- provide the person with the contact details and address of the nearest AAT Registry.
Providers may find it useful to maintain an up-to-date register of review officer appointments.
43.2 - Review by the AAT
A person may make an application to the AAT under section 212-1 of HESA for a review of a provider’s decision to refuse to re‑credit, remit and/or repay amounts where that decision has been varied or set aside on internal review by the provider under section 209‑5 or 209‑10 of HESA. A person who applies to the AAT may supply additional information that they did not previously supply to the provider, including the provider's reviewer.
The Secretary of the department is the respondent for cases that are before the AAT and the department is responsible for all dealings with these matters including responding to all AAT correspondence. When the department receives notification of an application to the AAT, it is still open to the department (on behalf of the Secretary) to review the original decision under HESA paragraph 209-5(2)(b).
Once the department has received notification from the AAT that the person has applied for the review under section 27 of the AAT Act, the Secretary must lodge, in accordance with subsection 37(1) of the AAT Act, the following documents with the AAT within 28 days:
- a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
- every document or part of a document that is in the decision-maker’s possession or under the decision-maker’s control and is considered by the decision-maker to be relevant to the review of the decision by the AAT.
Upon receipt of a notification from the AAT that a person has filed an application for review of a decision, the department will notify the provider(s), in writing, that a request for review has been lodged. To enable the department to meet the statutory timeframe for lodging relevant documents with the AAT, a provider must give the department copies of all the documents it holds that are relevant to the appeal within five business days of them being requested. The provider should keep any originals and copies of the documents in accordance with their normal record-keeping practices.
Subject to there being a current delegation of powers by the Secretary of the department to enable review officers of providers to review original decision of providers, a provider may, in accordance with HESA paragraph 209-5(2)(b), reconsider a decision for which review is being sought by the AAT. The provider must advise the department if a decision is made to re-credit, remit and/or repay following consideration.
However, until a person withdraws their AAT application, or the appeal is dismissed by the AAT, the department must comply with section 37 of the AAT Act. Therefore, a provider must still forward all relevant documents to the department within the five business days, unless the department advises otherwise. The department will deal with cases from that point and advise the provider of the outcome.