Cost-payment and exemptions
We adopted a position on the concept of cost-payment and the nature of
this payment obligation in several of our cases.
| A student contacted our
Office feeling that the cost-payment disbursed to the university
is refundable because they first postponed then dropped the major
for which they had disbursed the payment for a semester, since they
did not wish to pursue that major in the future. We informed the
applicant that the claim of the university for payment arises upon
enrolment. Cost-payment is not a proportionate compensation for
a service but a fee. Although the amount of cost-payment is broken
down on a monthly basis, this does not mean that the university
would not be entitled to the cost-payment for a semester upon enrolment.
This fact is without prejudice to the institution authorising payment
by instalment for reasons of equitableness. The university is entitled
for the cost-payment for a semester even if the student did not
complete the particular semester for one reason or another, either
because they did not take one of the examinations or because they
decided to postpone the semester during the semester. The student
must weigh all this upon enrolment, they may not reclaim the cost-payment
once enrolled. (K-OJOG-563/2001)
An applicant inquired whether the portion of cost-payment already
disbursed may be refunded proportionately if the student aborts
their studies during the semester. We informed the applicant that
the rules governing this issue are resolved by the higher educational
institution in its regulations within the legislative framework.
Legislation does not specify any stipulation with regard to the
refunding of cost-payment, thus the higher educational institution
is not obliged to offer refunds from the cost-payment disbursed
for a particular semester. Moreover, the institution may, of course,
offer the possibility of refunds in its regulations, even on the
basis of equitableness. However, our Office has no control over
the review of the contents of such decisions of equitableness. (K-OJOG-606/2001.) |
We offered information in a number of instances on regulations governing
the waiving of cost-payment for which students receiving maternity or
confinement allowance, child care allowance, child care support or child
care benefit may apply. Our Office was contacted by students concerned
because they had not been aware of the availability of this exemption
in state higher educational institutions.
Pursuant to Paragraph (4) of Article 22 of Government Decree 144/1996
(IX. 17.) on Supports available to university and college students, and
on fees and compensations payable by them, no cost-payment fee may be
collected from students participating in non-state-funded cost-payment
training who are receiving maternity or confinement allowance, child care
allowance, child care support or child care benefit on the first day of
the particular semester for a total maximum of two semesters beyond the
duration of training set forth in the qualification requirements. The
scope of the Decree covers the students of state-owned higher educational
institutions in case of cost-payment trainings. Thus the provision referred
to is applicable to the cost-paying students of state-owned higher educational
institutions. Only the students of state-owned universities and colleges
are entitled to such exemption, but even within this scope, it is not
applicable to students participating in PhD training, students of military
and policing higher educational institutions, and students participating
in state-funded supplementary undergraduate training as regular members
of the strength of the army. Within higher educational institutions falling
under the scope of this provision, the exemption from cost-payment obligation
is ensured in all cost-payment trainings, including field-specific extension
training and distance learning. According to our position, the inclusion
of state-owned institutions in the exemption is not discriminating.
| As a result of a complaint,
we established the following. The state grants an exemption from
the cost-payment obligation in state-owned higher educational institutions
through budgetary support for parents caring for their children
at home. This, however, does not represent discrimination since
the exemption from cost-payment obligations is not a subjective
right; the legislator in this instance offers a benefit to a specific
type of subject. According to the rulings of the Constitutional
Court, the state has extensive freedom in considering the provision
of state benefits with respect to the selection of beneficiaries,
provided that such selection is not arbitrary. It is our position
that in the present case, this is not arbitrary, since the basis
for the discrimination is a reasonable consideration that the state
offers this opportunity within institutions operated by the state.
(K-OJOG-541/2001) |
The exemption from cost-payment obligations must at all times be considered
with respect to the particular academic semester. This benefit is valid
for the duration of the maternity and child care allowance, child care
support or child care benefit. If a student bears more than one child
in a row, then the exemption from cost-payment obligations may be taken
advantage of for a maximum of two semesters beyond the duration of training
set forth in the qualification requirements. If a student receives any
of the benefits pursuant to Paragraph (4) of Article 22, the higher educational
institution may not specify conditions for such exemption.
We offered information on the above in a number of cases. (K-OJOG-2/2001,
K-OJOG-92/2001, K-OJOG-101/2001, K-OJOG-171/2001, K-OJOG-221/2001, K-OJOG-265/2001,
K-OJOG-326/2001, K-OJOG-376/2001, K-OJOG-394/2001, K-OJOG-454/2001, K-OJOG-541/2001,
K-OJOG-565/2001, K-OJOG-624/2001)
Other forms of payment in state-funded and in cost-payment training
| Students may have to bear
other payment obligations in addition to the cost-payment. Pursuant
to Paragraph (1) of Article 31 of the Act on Higher education, students
participating in state-funded tertiary training pay tuition and
other fees, while students participating in non-state-funded training
pay cost-payment and other fees. Pursuant to Paragraph (2), the
rules governing tuition fees, cost-payment and other fees in the
case of state-owned higher educational institutions are resolved
in the regulations of the institution within the framework of the
Government Decree. Thus these payment obligations may be regulated
by the higher educational institution within its own scope of authority,
this regulation may, however, not violate the Act on Higher education
and the provisions of Government Decree 144/1996 (IX. 17.) on Supports
available to university and college students, and on fees and compensations
payable by them.) |
The term of fees is resolved in Article 17 of the said Government Decree
as follows: students (7) pay
fees in case of the non-fulfilment or default fulfilment of obligations
resolved in the study and examination or other regulations of the institution
in line with the regulations. The amount of each of these fees may not
exceed 3% of the normative support of students resolved in the Budgetary
Act of the given year. In addition to the above, pursuant to Paragraph
(3) of Article 31 of the Act on Higher education, fees beyond the tuition
fees may only be charged to students participating in state-funded tertiary
training for services not associated with the fulfilment of study obligations
set forth in the qualification requirements and the syllabuses(8).
No other payment obligation may be prescribed for students on the basis
of their student legal relationship beyond the tuition fees, the cost-payment
and other fees described above.
| The students of a non-state-operated
college protested that as state-funded daytime students participating
in their first undergraduate training, they were obliged to pay
an average cost-payment of 100 000-110 000 Hungarian forints under
the title of training development, although they could not be obliged
to pay this amount pursuant to Article 31 of the Act on Higher education
discussed above. We established that among the special provisions,
in Paragraph (4) of Article 113, the Act on Higher education waives
this provision: private higher educational institutions may decide
provisions derogating from the stipulations of Paragraph (3) of
Article 31 in their regulations. Thus on the basis of this special
regulation, the college was entitled to claim a financial service
from state-funded students, thus the infringement of educational
rights could not be established. However, we drew the attention
of the Director that Article 24 Act of XCVII of 2000 on amendment
of the Act on Higher education states that Paragraph (4) of Article
113 of the Act became void as of September 1st, 2001. Thus from
that date on, private higher educational institutions would also
be obliged to proceed in accordance with Article 31 of the Act on
Higher education. (K-OJOG-1/2001) |
We experienced several instances of higher educational institutions prescribing
payment obligations for their cost-paying students under different titles
despite the above. These payment obligations were protested against at
our Office by young mothers receiving child care allowance and child care
benefit, who were entitled to cost-payment exemption pursuant to Paragraph
(4) of Article 22 of Government Decree 144/1996 (IX. 17.) described above.
| Several students receiving
child care benefit contacted our Office protesting that a university
demanded other fees from them under the title of extra procedural
fees, which would prevent them from signing up for examinations
if unpaid. We requested a statement in this case from the Dean of
the university concerned, who informed us that the rule of the Government
Decree ensuring an exemption mentioned above created a problematic
situation. Since on the basis of this exemption, the institution
was not allowed to collect cost-payment from 15 per cent of the
students in field-specific extension training, while the Ministry
of Education reimbursed only approx. 10 per cent of the cost-payment
fee per student. The university collects other fees for supplementary
materials as a temporary solution to the situation in order to maintain
the stability of training.
We established that students participating in cost-paying training
in state-owned higher educational institutions and receiving maternity
or confinement allowance, child care allowance, child care support
or child care benefits, on the one hand, are exempt from paying
cost-payment - pursuant to Government Decree 144/1996 (IX. 17.)
- and, on the other hand, are obliged to pay the fees set forth
in the regulations of the institution and in the case of the non-fulfilment
or default fulfilment of obligations are treated as are other students.
On the basis of their student legal relationship, no additional
payment obligation may be prescribed for such students, such as
a fee payment obligation based on any other title. With a view to
the above, we established that the higher educational institution
acted illegally when it prescribed the payment of other fees for
supplementary materials for students receiving maternity or confinement
allowance, child care allowance, child care support or child care
benefits. With a view to the above, we recommended that the higher
educational institution resolve the payment obligations borne by
the students in compliance with the legislation and ensure the possibility
of signing up for examinations to students who failed to pay the
illegally prescribed fees within the deadline set by the faculty.
We, furthermore, recommended that the institution take the measures
necessary to refund other fees collected illegally.
Based on the investigation, it was possible to establish that the
above conflict emerged from a financing issue between the higher
educational institution and the Ministry of Education arising from
covering the students' training. Therefore we found it important
to reach a reassuring decision in the case, thus we requested the
deputy state-secretary of Ministry of Education for higher education
to be at the disposal of the institution and we volunteered to mediate
in their negotiations. (K-OJOG-261/2001, K-OJOG-436/2001, K-OJOG-464/2001,
K-OJOG-494/2001) The conflict between the institution and the Ministry
seemed to be resolved in the course of these negotiations at the
end of the Year 2001. Based on more recent applications received
in the first few months of 2002, we see that no final solution was
brought to the problem, and the investigation of these complaints
is still underway. |
* * *
As has already been mentioned in the introduction, in addition
to the legislation, the set of rules governing the area of higher education
are also made up of regulations drafted by each higher educational institution.
In connection with the drafting and amending of institutional regulations,
we often had to face a problem this year that the legislation is short
of stipulations governing the temporal scope of their alteration, thus
it does not prescribe that regulations may only be amended in a bottom-up
approach. These regulations, as norms within an institution, are, however,
also governed by the general principles of the prohibition of retroactive
regulation and of the requirement of ensuring an adequate amount of preparation
time. In line with these principles, norms may not entail rights or resolve
or extend obligations for the time before their drafting; moreover, the
timeframe between the announcement and the entry into force of the decision
amending the requirements must be set in a way ensuring that new requirements
be introduced in a foreseeable and predictable manner for the students
and the students have the chance to plan the method of their fulfilment
and to fulfil them. We have drawn the attention of higher educational
institutions to these principles in several of our cases.
When reviewing the cases described above, it is apparent that our efforts
related to a particular set of problems do not end even if one of our
initiatives or legislative proposals is accepted. In the Year 2002, we
continued to monitor the development of the contents of the Information
Bulletin on higher educational admissions. We continue to investigate
measures by which the institutions prescribe other payment obligations
for the students in addition to the tuition fee and cost-payment obligations
since in connection with other fee payment obligations, even in the Year
2002, our Office continued to receive complaints from young mothers receiving
child care allowance or child care benefit, who were entitled to cost-payment
exemption pursuant to the legislation yet were required to pay fees to
the institution. As a result of legislative changes, we launched an investigation
ex officio in a major case category within the area of higher education,
that is in connection with the legislative and institutional regulation
of language examination requirements prescribed for entering the final
examination and obtaining a degree.
(7) AStudents of Hungarian nationality
pursuing daytime studies in first undergraduate training, first supplementary
undergraduate training, first field-specific extension training and in
first tertiary accredited academic vocational training financed by the
state in state-owned higher educational institutions or non-state-owned
higher educational institutions pursuant to an agreement between the Ministry
of Education and the institutions; and students of foreign nationality
participating in state-funded training in higher educational institutions
pursuant to separate legislation or international agreement; and students
participating in state-funded evening or correspondence undergraduate
training or in first tertiary accredited academic evening or correspondence
vocational training financed by the state; and students participating
in non-state-funded cost-payment training in state-owned higher educational
institutions. However, excluding students participating in PhD training,
students of military and policing higher educational institutions, and
students participating in state-funded supplementary undergraduate training
as regular members of the strength of the army.
(8) Article 18 of Government Decree
144/1996 (IX. 17.) resolves similar stipulations.
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