By: Suellen Bullock Director SSAT – NSW/ACT Sydney 23 May 2008

1. FIFTH ANNUAL COAT CONFERENCE NSW CHAPTERDEALING 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.