How to: Decide what evidence I need for my AAT appeal

This series of fact sheets was published on 08/10/2023. In October 2024, the Administrative Appeals Tribunal (AAT) was replaced by a new body called the Administrative Review Tribunal (ART). If you asked the AAT to review your NDIS decision before this, your case will have been automatically transferred to the ART.

While some of the ART’s processes are similar to the AAT, both the laws about how the Tribunal works, and the laws governing the NDIS, have now changed significantly. This means a lot of the information in these fact sheets may no longer be up to date or relevant to your circumstances.

These fact sheets provide general information and suggestions only. These fact sheets do not provide legal advice, and might not apply to your circumstances. If you need legal advice, you can find an advocate or a lawyer to help you using the links below at ‘Where can I get advice if I need help understanding my options?'.

This information in this factsheet was last updated by the Housing Hub on 08/10/2023.

Evidence is a very important part of any case at the Administrative Appeals Tribunal (AAT). Evidence helps the AAT to understand the facts about your situation. The AAT will make its decision based on the evidence it receives.

This fact sheet explains what evidence is, what kinds of evidence you might think about getting for your case, and how to start gathering that evidence.

We have other fact sheets that talk about some of the legal issues this evidence might be useful for, and how that evidence might be used at a hearing.

What is evidence? 

’Evidence’ means anything that can help to prove facts in your case. Evidence can include:

  • Statements from you (which can be in writing, recorded, or said to the Tribunal at a hearing)
  • Statements from other people who know you – like your parents, siblings, partner and/or support workers
  • Reports or letters from experts – like an Occupational Therapist or Psychologist
  • Written records like receipts or emails
  • Explanations of facts, such as research papers written by academics, or newspaper articles about events that have happened

Law courts are strict about the evidence people can present, but the AAT is not technically a court. So you can present any evidence to the AAT that you think will support your appeal. 

Some evidence will be more convincing than other evidence. What makes certain types of evidence convincing is explained below.

What do I need evidence for?

Many people have problems at the AAT because they don’t realise they need evidence to support each part of their case. It is important you have evidence for every fact you want the AAT to agree with you about.

What types of evidence can I get?

There are many different types of evidence used for NDIS appeals. Every case is different. Some of the most common types of evidence are:

  • Statements of lived experience (SoLEs)
  • Statements from family, friends and/or support workers
  • Expert reports
  • Research materials
  • Calculations of the costs of alternative supports

Some of these are explained below.

If you have a lawyer or an advocate working with you, they will usually do most of the work getting evidence for your case and explain any work they want you to do yourself.

Statement of Lived Experience (SoLE)

A SoLE is something you write or say about your life, your goals, and your support needs. The SoLE explains things from your point of view. For your AAT appeal, the SoLE should explain facts that support your case. It should not make legal arguments or complaints about the NDIS and AAT process.

You can write your own SoLE or you can ask somebody to help you write it. If somebody helps you to write your SoLE, you will need to sign it and confirm that it is correct.

You should make sure your SoLE says everything you want to say to the AAT about your personal experience and circumstances.

‘Facts’ are things that are true; ‘opinions’ are things you think, feel or believe. When preparing a SoLE, you should make it clear when you are saying things you know as facts, and when you are giving your opinions.

  • For any facts in your SoLE, you should explain how you know those facts – what you saw, heard, etc that made you believe those facts are true. Make sure you only say things you know are true. 
  • For any opinions, thoughts or feelings in your SoLE, you should explain why you hold those opinions, thoughts or feelings, and give reasons to help the AAT understand why you think or feel that way.

The AAT will usually ask a person who provides a SoLE to also speak at a hearing, so they can explain the issues in more detail, and the NDIA can ask questions about the information in their SoLE. If you want to provide a SoLE, but don’t want to give evidence at a hearing, you can explain why to the AAT. 

Statements from other people

People like family members, friends, or support workers, can also write a statement about how they see the issues in your case.

Like a SoLE, these statements should focus on facts the person knows and can give evidence on. These statements should not focus on saying the person supports you and your case; or on what they think of you, the NDIA, or the AAT process. For example, they do not need to say  they think you are a good person, or that the NDIA has treated you badly. 

It can be helpful to think about statements like these as ‘witness statements’, and not as ‘letters of support’.

You should ask any person providing a statement in your case to write the statement themselves. You can explain what the statement is for and ask them to consider writing about certain topics; but you should not tell them what to write, since it needs to be their evidence and how they see things. 

All statements should be signed by the person who made them. The AAT usually expects a person who gives a statement to be prepared to attend the AAT hearing and give evidence in person. 

Expert reports

Expert reports can be some of the most important evidence in AAT appeals. Expert reports are usually provided by people with professional qualifications, such as a doctor, psychologist, psychiatrist, occupational therapist (OT), physiotherapist, giving their professional opinion on issues in your case.

A good expert report:

  • Follows the requirements of the AAT Guideline
  • Clearly gives the expert’s opinion and recommendations
  • Uses professional and measured language, so the expert does not come across as biased in favour of the person who has requested the report
  • Fully explains all opinions and recommendations, so the AAT can understand what the expert thinks and why
  • Uses sources and citations (references) for professional knowledge where appropriate – for example, by including footnotes for any written sources they have relied on
  • Addresses obvious objections or follow-up questions people might have to the opinions in the report
  • Does not give opinions or recommendations outside of the expertise of the expert – for example, a speech pathologist should not give opinions about physiotherapy exercises

How expert reports are used by the AAT

The AAT has rules for expert reports, which are set out in their ‘Persons Giving Expert and Opinion Evidence Guideline’ (‘the Guideline’) on the AATwebsite.

If a person provides an expert report, the AAT will expect them to also appear at any future AAT hearing to explain their report and answer questions about it. If an expert is not available to give evidence at your AAT hearing, the AAT might think that their report is less important. Make sure you talk about this with any expert you ask to write a report for you.

It might take an expert several weeks to write their report, so make sure you think about this when you ask the AAT to give you time to provide your evidence (see our fact sheet How To: Prepare for and attend a case conference). When you are thinking about which expert to use, you could ask them how long it will take to prepare their report.

Choosing an expert to write a report for your AAT case

If you think an expert report will be helpful for your case, you should choose an expert who can talk about the specific facts you want them to help you prove. If you aren’t sure about the right kind of expert for your case, you could try researching different types of experts and their qualifications, or even contact the offices of specific experts to ask if they can give evidence about the types of facts you want.

If you need an expert report from a medical or allied health professional, you should think about whether you can get a report from the professional(s) already working with you. For example, if you need an OT’s report, you might ask your regular OT to write that report since they would already know about your case, your disability and your life. But all experts need to remain neutral when writing a report, which means they have to give their professional opinion and cannot ignore or make up facts to try to help your appeal.

When you are choosing an expert, you should ask how much they will charge to write the report. Many experts will charge fees of thousands of dollars, because writing a report for the AAT is complex. You may be able to pay for these fees using NDIS Plan funding, or you might need to find another way to pay for the report. 

If the NDIA has asked you to get a particular type of expert report, you could ask the NDIA if they will pay for the report. You can ask them at a case conference, or by contacting the NDIA case manager or their lawyers.

Asking an expert to write a report for your AAT case

When you have chosen an expert, you should explain that you need a report for an AAT case and give them a copy of the Guideline. You should also give them any information they need to understand your situation (such as any previous expert reports about you and your case). You should also give them a list of information you would like them to include in their report. For example, you could ask them to:

  • Give their opinion of your current health, disability needs, and/or condition(s)
  • Give their opinion on whether certain supports would help you or not, and explain why
  • Explain a certain type of treatment or support, and how it works
  • Make recommendations about your future care and supports
  • Give their opinion of how certain future situations would impact you – for example, what might happen if you don’t get some supports you ask for

The information you ask an expert to include will depend a lot on the facts of your case, and the type of expert providing the report. Make sure the information you ask for covers all the facts you want their report to help you to prove.

Most medical and allied health experts will need to see you and collect information to help them write their report. You will usually need to discuss suitable appointment times, and whether they need to see you in person or online.

After the expert meets with you, they will often take a few weeks to write their report. You could ask them to send you a draft of the report, so you can check it before you send it to the AAT. You cannot tell the expert what to write in their report, change their opinion or say things they don’t believe are right, but you can ask them to put in more information about something, take out something that isn’t relevant or talk about the questions you have asked in more detail.

What evidence should I get?

Deciding what evidence to get and how to get it can be hard.

To decide what evidence you should get, you think about:

  • What facts show why you need the supports you are asking for
  • What evidence can prove those facts
  • What evidence the AAT already has and any ‘gaps’ where the AAT does not have evidence
  • What evidence you already have to fill those gaps
  • What evidence you could get to fill any remaining gaps

What evidence already exists? 

After you have worked out what facts you need to prove, you look at what evidence you already have. For some facts, you won’t need any more evidence – for example, you might already have provided a lot of evidence that proves you have a disability, so you might not need any more evidence about that.

You should look at what evidence is in the T-documents submitted by the NDIA (see our fact sheet How To: Understand the T-documents the NDIA files in my AAT case), as well as any other evidence you or the NDIA have already given to the AAT. For each piece of evidence, you should think about:

  • Is the evidence still up-to-date? If time has passed (for example, if a medical report is now a year or two old), can you still rely on this evidence or do you need to replace it with new evidence?
  • Does the evidence support the points you are trying to make? For example, do any expert reports specifically address the facts you are trying to prove?
  • Is there other evidence that goes against the points you are trying to make?

When do I need to have my evidence ready?

Usually, one of the first steps in an AAT case is a case conference. We explain these in our fact sheet How To: Get ready for and attend a case conference.

At the first case conference, the AAT Conference Registrar will probably ask what evidence you have or are planning to get to support your case. You should think about what evidence you want before the case conference – including any statements, expert reports, or other information. But you don’t need to have your evidence ready before the first case conference.

The Registrar will probably also ask you how long you need to get the evidence you want to provide. They may want to set a date for you to give your evidence to the AAT. You should be ready to suggest a date that gives you enough time to get all your evidence ready. 

Where can I get advice if I need help understanding my options?

You may be able to get advice about your options for requesting a review and help with other questions about the NDIS from a legal service. It will depend on the type of problem you have, and where you are located.

If you need help from a lawyer, National Legal Aid has the contact details for your local Legal Aid office.

If you need help from an advocate, the AskIzzy Disability Advocacy Finder is an online tool to help you find to search for advocacy providers using your suburb or postcode.

You can also look at our other fact sheets about this, including:

Who made this factsheet?

Housing Hub and the Justice and Equity Centre (JEC) made this together in October 2023. It was updated by the Housing Hub in 08/10/2023. Since 2021, JEC and Housing Hub have worked together to provide advice and assistance to participants seeking SDA funding. This factsheet is part of a series about challenging NDIS decisions.

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