1 FIFTH ANNUAL COAT CONFERENCE NSW CHAPTER DEALING WITH DIFFICULTIES IN THE ABSENCE OF LEGAL REPRESENTATION The Hearing Process In the Absence of Legal Representation By: Suellen Bullock Director SSAT – NSW/ACT Sydney 23 May 2008

2 SSAT  The Social Security Appeals Tribunal (SSAT) operated since 1975 – a statutory body established to conduct merits review of administrative decisions made under social security law, family assistance law.  From I January 2007, the SSAT assumed responsibility for reviewing most decisions made by the Child Support Agency.  High volume jurisdiction. NSW/ACT Offices busiest offices.  Executive Director, 5 State Directors, Nationally - 35 Full -time members, 164 Part-time members (total of 204 members). NSW/ACT: 60 members – 8 Full-time; 52 Part-time

3 Statutory Objective, To provide a review mechanism which is: fair just economical informal quick  Hearings - Social Security one hour, one party - Child Support two hours, two parties evidence on oath/affirmation hearings recorded  Tribunal panels – Mostly two member, three if complex or for training purposes.  Written reasons produced in all social security matters, but in child support, possibility of oral reasons.

4 The SSAT (Cont’d)  Legal representation allowed, but majority of cases have no legal representation. Legal Aid or Community Legal Centres most often represent or provide written submissions. Private legal representation rare.  Tribunal Members skilled in conducting hearings in the absence of legal representation.  Parties may bring support person to hearing or non legal representative (often relative or friend).

5 Tribunal Member’s pre-hearing preparation  Preparation – the foundation of a successful hearing !  Understand the case, but retain an open objective mind.  Identify relevant legislation, evidentiary gaps, appropriate questions. What does the Tribunal need to make its decision?  Identify barriers to communication, issues for the hearing ie language; cultural difference; disability. What communication style might be appropriate?  Imagine how the applicant/other party might be feeling about appearing at the Tribunal.  Who asks which questions? Strategy for information gathering.

6 Presiding Member’s Introduction  Introduction sets the scene and tone of the hearing, assists to manage expectations and control the proceedings.  If support person present, explain his/her role.  Explain role of Tribunal, hearing procedure (should confirm information provided through case management communication strategy); duration of hearing; inquisitorial approach.  Reinforce independence of the Tribunal and types of decisions Tribunal can make. Advise that Tribunal may make adverse decision.  Confirm the decision being reviewed.

7 Conduct of the Hearing  Facilitate the provision of evidence but do not become an advocate for a party.  Use active listening skills – verbal non verbal cues.  Maintain focused yet flexible approach – be responsive to unexpected information and demeanour.  Are there any security issues, special needs of a party?  If more than one Tribunal Member, work as a team.  Provide the opportunity for the applicant/ other party to say what is important to them. Remember that while original decision-maker not present, they are still a party.  Be prepared to be surprised!

8 Conduct of the Hearing (Cont’d)  Analyse the information being provided.  Check the questioning style is eliciting relevant evidence. Should the questioning style be changed?  Manage the emotion of the hearing.  Ensure procedural fairness – put adverse material.  Provide opportunity for closing remarks.

9 Conclusion of the hearing  Explain types of decision the Tribunal can make i.e. affirm; set aside; vary.  When will the decision be made and how (written or oral decision).  Further appeal rights if dissatisfied with Tribunal decision.  Ensure all additional documentary evidence received is recorded. Is information sufficient, is there need for an adjournment ?  Ensure any confidentiality or privacy orders are given.

10 Conclusions  Absence of legal representation at hearing not necessarily an impediment as long as Tribunal members are prepared.  Identify any barriers: communication; disability; lack of evidence etc  Maintain objectivity, do not become an advocate.  Explanation of the process during hearing must be made to the parties.  Active inquisitorial approach.  Members must maintain focus, but be flexible and responsive.  Control of the proceedings will require different strategies depending on the circumstances of the case.  Ensure procedural fairness – put adverse material, opportunity to present case.