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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

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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

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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.

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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).

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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.

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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.

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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!

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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.

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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.

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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.