What is a hearing for?

At a hearing, the Member can get more information to decide important questions about the law and the facts of your case. A hearing is used so:

• The Member can hear straight from all witnesses and people involved in the case
• You and the NDIA can explain your evidence to the Member
• You and the NDIA can ask questions or make arguments about each other’s evidence for the Member to hear
• You and the NDIA can explain to the Member about why you should win the case

Because of this, a hearing is normally the most important thing that happens in your case.

A hearing will usually only take 1 day, and sometimes just a few hours. But in some more complex cases a hearing will need to go for 2 or more days, so the AAT can hear from all witnesses.

Most people prefer to have a lawyer or advocate help them at a hearing. If you would like a lawyer or advocate to help you at a hearing, you can consider speaking to one of the organisations listed below at ‘Where can I get advice if I need help understanding my options?’.

When does a hearing happen in my case?

A hearing will only happen after you and the NDIA have all of the evidence ready, and if you and the NDIA cannot agree on what the outcome of your case should be. (For more information about preparing evidence, see our fact sheet How To: Decide what evidence I need for my NDIS AAT appeal).

Once you and the NDIA have all your evidence ready, the AAT will prepare the case for a hearing, usually at a case conference – for more information about these, see our fact sheet How to: Get ready for and attend a case conference. At that case conference, the AAT might make a case plan that says what needs to happen and when in the lead up to the hearing. This case plan might:

• Tell the NDIA to prepare a Statement of Issues before a certain date
• Ask both you and the NDIA to fill in and give the AAT a Hearing Certificate (we explain more about Hearing Certificates below)
• Ask you and/or the NDIA to summarise your arguments on each of the important issues by providing a document called a Statement of Facts, Issues and Contentions (SFIC)
• Set a hearing date, or a range of possible dates when a hearing could happen.

What is a Hearing Certificate?

A Hearing Certificate is a form used by the AAT to get the information it needs from you and the NDIA to book in a hearing. 

If you have a lawyer or an advocate helping you, they will speak to you about filling in the Hearing Certificate. 

If you do not have a lawyer or advocate, you should fill in the Hearing Certificate yourself. Hearing Certificates are available from the AAT’s website: https://www.aat.gov.au/landing-pages/other-forms/hearing-certificate 

First, speak to any people who can give evidence at the hearing on your behalf, including people who have given statements to support your case or experts who have written reports. Ask whether they can come to the hearing as a witness and find out when they are available. 

When you fill in the Hearing Certificate, you can tell the AAT about any help you need to attend a hearing.

The Hearing Certificate asks:

• Who (witnesses) will give evidence at the hearing 
• If you have a lawyer or advocate who will help you at the hearing
• What days you and your witnesses are available for a hearing
• If you or any of your witnesses need support to appear and speak at a hearing – for example, if you need:
• interpreters (including Auslan)
• physical access needs
• more time to process or think during the hearing
• a support person or assistant
• other supports to help you communicate

Setting a hearing date

Once a hearing date is set, the AAT will send you and the NDIA a Listing Notice with details of the hearing date, how the hearing will happen and where it will be.

Check you are available at the time and date on the Listing Notice, and make sure you know how to attend the hearing. If the hearing is in person, you should make sure that you can get to the address for the hearing. 

If you don’t think you can make it to the hearing, you should tell the AAT as soon as possible by calling them or sending them an email.

How and where do hearings happen?

It will be up to the AAT to decide whether the hearing should be: 

• in person
• on the phone 
• on a video call using the Microsoft Teams application 
• using a combination of in person, video, and phone

If you would prefer the hearing to happen in a particular way, you should let the AAT know and explain your reasons.

A hearing will involve a number of different people:

Presiding Member

Every hearing will have a Member in charge of it, who is also the person making the decision about your case. (In rare and very complex cases, there may be more than one Member). 

The Member will be in control of what happens at the hearing. When the Member asks you to speak, you can call them “Member”. If they have a title like “Senior Member” or “Deputy President”, you can use that.

Lawyer (or lawyers) for the NDIA

At least one NDIA lawyer will be at every hearing to ask witnesses questions on behalf of the NDIA, explain the NDIA’s case and make arguments to support the NDIA’s position.

NDIA case manager

At many hearings, there will be an NDIA case manager. They are there to tell the lawyer for the NDIA about what the NDIA wants them to do.

Advocate or lawyer for the Applicant (you)

If you have an advocate or a lawyer, they can be at your hearing with you and can explain beforehand what their job is at the hearing.

If you don’t have a lawyer or an advocate and you would like one, you can think about getting legal advice from one of the organisations listed below at ‘Where can I get advice if I need help understanding my options?’.

You – the Applicant

You will need to be at the hearing for your case, unless you have spoken with your advocate or lawyer and agreed they will go instead of you. 

We explain what you can do to get ready for a hearing, and what you can do at a hearing, later in this fact sheet.

Support person

You can ask for a support person to be at your hearing with you. Your support person can be a friend, family member, counsellor, etc. A support person is not there to speak at the hearing, but to support you if you find the hearing upsetting or hard.

Your support person should not be somebody who will be giving evidence as a witness in your case, as it might look like they are not giving balanced evidence and are biased in your favour.

What should I do before a hearing?

The best way to get ready for your hearing will depend on lots of things, like what the main issues are, what evidence you have, and what evidence the NDIA has. We can only suggest some general things. For detailed advice about getting ready for your hearing you can get legal advice by contacting one of the organisations listed below at ‘Where can I get advice if I need help understanding my options?’.

Before the hearing, you should let the AAT know about any accessibility needs you have. This could include if you would prefer the Hearing to happen over a video call, a phone call, or in person. If you are filling in a Hearing Certificate, you can tell them about your accessibility needs there. If you aren’t filling in a Hearing Certificate, you can send them an email telling them about your accessibility needs.

You should also tell your witnesses about the hearing details. It is usually a good idea to give your witnesses a copy of the Listing Notice. 

When you speak to your witnesses, you shouldn’t tell them what to say at the hearing or try to influence what they say. You can ask them to re-read any statement/reports they have provided to refresh their memory about what they have said in those. You can also tell them about new information they might not know, like changes in your life or information that has been provided by other witnesses in the case.

You should read over all of the evidence in your case, including the evidence you have given and the evidence the NDIA has given. You could think about how all of the facts in the case fit together, and what kinds of things you want to say to support your case. You might want to write some things down to help you at the hearing.

What should I do at a hearing?

If you have a lawyer or advocate helping you at your hearing, they will do most of the work and will explain what you need to do.

If you do not have a lawyer or advocate, this section of our fact sheet will help you understand some important parts of the hearing. 

Hearings at the AAT are not as formal or technical as in a court. If you don’t understand what is happening and don’t have a lawyer helping you, you can ask the Member or the AAT staff and they will usually try and explain things to you.

Opening statements

At the start of the hearing, the Member might ask you and the NDIA’s lawyers to explain your case in what is called an opening statement.

An opening statement can be a good opportunity to explain what you think the main issues are in your case, and to point out some of the evidence and key things you want the Member to think about. Make sure your opening statement is focused on the issues in your case, rather than other disagreements you might have with the NDIA or problems you want to talk about.

If you are worried about giving an opening statement, you can tell the Member. 

Evidence from witnesses

Evidence from witnesses is an important part of the hearing. There can be a few different ways that a witness might speak at a hearing.

Evidence in Chief 

When a witness gives evidence, the person who asked them to appear will usually be given the first chance to ask questions. This is called evidence in chief.

For the witnesses you have asked to give evidence, think about the things you would like them to speak about and what you would like them to say to the AAT. This can help you plan the questions you would like to ask them during their evidence in chief.

The Member will be listening closely to the evidence in chief. If the Member wants to know more about something, they might ask the witness some questions of their own. However, it is not the Member’s job to help you present your case. You, or your lawyer or advocate, will need to make sure you ask your witnesses the right questions to get them to explain the things that will help your case.

Cross-examination

After a witness has given evidence in chief, the other side can ask the witness some questions of their own. This is called cross-examination. This means the NDIA will get a chance to ask your witnesses questions, and you will get a chance to ask the NDIA’s witnesses questions.

People usually use cross-examination to challenge or question the evidence the other side has presented, and check whether there are gaps in that evidence or reasons why the Member should not accept what the witness is saying. This can include asking questions that show the witness hasn’tunderstood something about the case, or has said something that is not true.

Before the hearing you should think about what the NDIA’s witnesses might say, and whether there might be reasons why the Member should not accept what they say. For example, if the NDIA has arranged for an expert witness to give a report, you might want to ask questions in cross-examination that show the witness didn’t understand you, your disability or support needs, didn’t think about important information when they wrote their report or that the report has mistakes in it.

Cross-examination can be one of the most complicated and scary parts of an AAT hearing. Usually, it is best not to argue with witnesses, or  say things about a witness unless you have evidence to prove it. But it is also an important opportunity to show the Member why some evidence might not be right.

Concurrent evidence from experts

Sometimes, if both you and the NDIA have experts with similar qualifications, the AAT will ask them to give evidence at the same time. For example, if you and the NDIA have both asked occupational therapists to give a report and speak about the report at a hearing, the AAT might ask them to give evidence together. This is called concurrent evidence. It allows the experts to speak to each other and for the AAT to compare their evidence.

If the Member suggests that you should have experts give concurrent evidence in your case, the Member will usually explain how they want that process to work.

Giving evidence as a witness

In your NDIS appeal, you will often be the most important witness. This is because you will be the best person to explain your own situation, any disability support needs that you have and your perspective on the case.

When you give evidence in your own case, you should get ready by reading over any Statement of Lived Experience you have prepared (for more information about Statements of Lived Experience, see our fact sheet How To: Decide what evidence I need for my NDIS AAT appeal). You should think about what things you want the AAT to know and what facts you want them to understand.

When you give evidence, the Member will let you say what you want to say about your situation and your case. The Member might ask you questions to get you to explain things they want to know more about. The NDIA will also usually be allowed to ask you questions in cross examination.

Try to be as clear as possible about what you are saying, including by explaining what you know and how you know it. 

Closing statements

At the end of the hearing, both you and the NDIA will have a chance to sum up the important points in your case in a closing statement.

This is your chance to explain to the Member the evidence you think was most important and how you think that evidence fits together to prove your case. It is usually the last chance both sides will get to make their arguments to the Member. This makes it a very important chance to show the Member why you should win the appeal.

People sometimes use their closing statements to:

• Explain how the pieces of their case fit together
• Explain why the Member should agree with helpful things their witnesses and evidence have said
• Explain why the Member should not agree with things the NDIA’s witnesses and evidence have said
• Make legal arguments about the proper way to apply the law to their case

What happens after a hearing?

In some cases, the Member will make their decision straight away at the end of a hearing. If that happens, they will tell you what their decision is and explain why they made that decision.

But in most cases, the Member will need to think about their decision. If this happens, the Member will not tell you their decision on the day, but will let you know their decision later. This is known as reserving a decision.

If the Member reserves their decision on your case, the AAT says they will try to provide you with a final decision within 60 days. However, in some cases it can take longer than this, like if your case is hard or has a lot of evidence.

After the Member makes a decision, you should be sent a copy of the orders they make and their reasons for those orders. The orders will explain what happens next, and what the NDIA needs to do – for example, the Member might order the NDIA to give you a new NDIS plan with funding for certain supports. The reasons will explain why the Member has made that decision.

If you don’t understand what the orders mean, or want to know your options after you get a decision, you can think about getting legal advice from one of the organisations listed below at ‘Where can I get advice if I need help understanding my options?’.

Sometimes, people feel that lawyers for the NDIA have not treated them properly at a hearing. If you think the NDIA’s lawyers have not behaved properly, you can read our fact sheet “How to: Complain if I think the NDIA is treating me unfairly” for more information about your options. You do not need to wait for the AAT to make its decision before making a complaint.

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.

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.