(1) Ms Silvers does not have a disability support pension debt; and

(2) Ms Silvers' rate of disability support pension is assessed on the footing that the distribution from the [Trust] is disregarded and the attribution of income from the trust ceased when the trust was terminated in June 2024.

SOCIAL SECURITY - disability support pension - debt and reduction of rate - distribution from trust apportioned over year - sale of asset a capital gain and not income - brother-in-law trustee of two of the applicant's trusts - decision that brother-in-law sole attributable stakeholder and assets and income attributed to him - later decision of attribution of one trust to applicant - brother-in-law's interest in trust limited to fiduciary duties as trustee - capital gain not ordinary income for social security purposes - trust now terminated and attribution ceased - decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.

1. Ms Silvers was regranted disability support pension in August 2022. Apart from a period of about 16 months, Ms Silvers was previously in receipt of disability support pension from August 1990.
2. This matter concerns the following Centrelink decisions:
   • - a decision of 29 April 2025 to reduce Ms Silvers' disability support pension rate; and
   • - a decision of 2 May 2025 to raise and recover a disability support pension debt of $4,217.69 from 25 January to 15 April 2025.
3. Both decisions are said to relate to a distribution to Ms Silvers of $51,379 from the [Trust] relating to the 2023/24 income year. The [Trust] was vested in June 2024 and the trustee's resolution to distribute is said to have been made on 25 January 2025.
4. According to Centrelink, the distribution is income for social security purposes to be evenly apportioned over the period of 52 weeks from 25 January 2025. The debt is said to arise because the apportioned income was not taken into consideration during the debt period.
5. An understanding of the earlier background to this matter is central to its resolution. Prior to June 2024, Ms Silvers was the principal beneficiary of 3 trusts, the [Trust], the [Protective Trust] and the [SD Trust]. [Ms A] (Ms Silvers' sister and a witness at the hearing) explained that Ms Silvers has an acquired brain injury as the result of a motor vehicle accident in 1990. Their father set up the trusts to ensure Ms Silvers' financial needs would be met.
6. The [SD Trust] is a special disability trust satisfying the requirements in Part 3.18A of the Social Security Act 1991.[1] Accordingly, this trust has no income or asset consequences for social security purposes. [Ms A] said the [Protective Trust] was originally intended to be a special disability trust but Centrelink decided that not all the qualification requirements were met at the time.
7. According to Centrelink records, in September 2010 it decided [Mr B] ([Ms A]'s husband) was the sole attributable stakeholder of both the [Protective Trust] and the [Trust] under the means test treatment of private trusts in Part 3.18. In July 2014, Centrelink decided Ms Silvers was the sole attributable stakeholder of the [Protective Trust] but (for reasons not evident in the hearing papers) left its decision regarding the [Trust] untouched.
8. The effect was that, from July 2014, the income and assets of the [Protective Trust] were attributed to Ms Silvers whereas the income and assets of the [Trust] were at all times attributed to [Mr B]. For reasons that will become apparent, the proper treatment of the distribution to Ms Silvers from the [Trust] depends on whether she is (also) an attributable stakeholder of this trust.
9. On 3 June 2025 an authorised review officer affirmed Centrelink's decisions.
10. Ms Silvers sought review by the Tribunal on 23 July 2025. The matter was heard by telephone in Brisbane on 30 October 2025 and Ms Silvers was represented by Mr Alex Lukashenok of Aspire Financial Counselling. Ms Silvers has a significant acquired brain injury and was unable to attend. [Ms A] attended and provided sworn evidence.

1. The issue Mr Lukashenok raises is that, as part of the vesting of the [Trust] in June 2024, the primary asset, a listed security, was sold. This resulted in a capital gain which then had to be distributed in accordance with tax rules. Mr Lukashenok sees this as essentially a transfer of capital to Ms Silvers and not income.
2. Regarding Mr Lukashenok's concern, the Profit and Loss Statement for the [Trust] for 2023/24 reveals that the primary income source for tax purposes was a capital gain of $49,941. The capital gain therefore comprises the bulk of the distribution to Ms Silvers.

1. The ordinary income test for disability support pension is found in Module E of section 1064. Subsection 8(1) contains several relevant definitions:

ordinary income means income that is not maintenance income or an exempt lump sum.

(a) an income amount earned, derived or received by the person for the person's own use or benefit

1. Subsection 1073(1) provides:

Certain amounts taken to be received over 12 months

1073(1) Subject to points 1067G-H5 to 1067G-H20 (inclusive), 1067L-D4 to 1067L-D16 (inclusive), 1068-G7AA to 1068-G7AR (inclusive), 1068A-E2 to 1068A-E12 (inclusive) and 1068B-D7 to 1068B-D18 (inclusive), if a person receives, whether before or after the commencement of this section, an amount that:

(a) is not income within the meaning of Division 1B or 1C of this Part; and

(ii) ordinary income from remunerative work undertaken by the person; or

(iii) an exempt lump sum;

the person is, for the purposes of this Act, taken to receive one fifty-second of that amount as ordinary income of the person during each week in the 12 months commencing on the day on which the person becomes entitled to receive that amount.

1. Regarding paragraph (a), Division 1B applies to deemed income on financial assets and Division 1C to income streams. Neither Division is presently relevant.
2. Subsection 1073(1) requires that a person receives an amount but the receipt itself does not determine when the period of 12 months commences and can plainly be before or after that date.
3. Under the rules in Part 3.18, a person's involvement in a private trust can have the result that the person is attributed with up to 100% of the trust's assets and income. The general outline is set out in section 1207:

1207 The following is a simplified outline of this Part:

This Part sets up a system for the attribution to individuals of the assets and income of private companies and private trusts (sections 1207Y and 1208E).

• Attribution starts on 1 January 2002.
• For an asset or income to be attributed to an individual:

(a) the company must be a designated private company or the trust must be a designated private trust (sections 1207N and 1207P); and

(b) the company must be a controlled private company in relation to the individual or the trust must be a controlled private trust in relation to the individual (sections 1207Q and 1207V); and

(c) 'the individual must be an attributable stakeholder of the company or trust (section 1207X).

• A company or trust will be a controlled private trust or a controlled private company if the individual passes a control test or a source test.
• An individual will not be an attributable stakeholder of a trust if the trust is a concessional primary production trust in relation to the individual.
• The asset deprivation rules and the income deprivation rules are modified if attribution happens.

1. Subsection 1207V(1) provides that a trust is a controlled private trust in relation to an individual if the trust is a designated private trust and the individual passes the control test. A private trust is a designated trust under section 1207P unless certain specific criteria apply.
2. A person passes the control test under subsection 1207V(2) if an associate of the individual is a trustee of the trust. Under paragraph 1207C(1)(j) a trustee of a trust is an associate of an individual if the individual benefits, or is capable of benefiting, under the trust.
3. Subsection 1207X(2) provides that a person who passes the control test in relation to a trust is an attributable stakeholder of the trust unless the Secretary otherwise determines. The person's asset and income attribution percentages are 100% unless the Secretary otherwise determines a lower percentage. Under subsection 1207X(5), in making these determinations the Secretary must comply with any relevant decision-making principles.
4. Under section 1207Y income attributed to an attributable stakeholder must be ordinary income. To avoid double-counting of attributed income and trust distributions made to an attributable stakeholder, subsection 1207Z(2) provides:

(i) makes a distribution (whether in money or in other property) to a particular beneficiary of the trust; or

(ii) credits an amount to a particular beneficiary of the trust; and

(c) the individual is an attributable stakeholder of the trust;

(d) determine that, for the purposes of this Act, the ordinary income of the individual does not include the amount distributed or credited to the individual; or

(e) determine that, for the purposes of this Act, the ordinary income of the individual does not include so much of the amount distributed or credited to the individual as is specified in the determination.

1. Pursuant to subsection 1207X(5), the Secretary has formulated the Social Security (Attributable Stakeholders and Attribution Percentages) Principles 2017 (the Principles). The Principles essentially direct a decision maker to examine the individual circumstances of a case. It is imperative to have regard to the Principles in trust cases due to the statutory presumption that a mere beneficiary under a discretionary trust controls the trust's assets. Caution is required because the general position in equity is that a beneficiary under a discretionary trust does not have a beneficial interest in the trust's assets. Rather, the beneficiary has a (lesser) personal right to ensure a trustee acts in accordance with their fiduciary duties:

But it is quite clear that if the trustee has a discretion as to whether a beneficiary is to receive anything under the trust the beneficiary has no proprietary interest in the trust assets and has merely an equitable chose in action.[2]

1. Regarding whether a person is an attributable stakeholder, Part 2 of the Principles provides as far as is relevant:

Part 2 Determination that individual is not attributable stakeholder

This Part sets out decision-making principles with which the Secretary must comply in making a determination, under paragraph 1207X(1)(a) or (2)(c) of the Act, that an individual is not an attributable stakeholder of a company or trust.

(1) This Part applies if, but for a determination by the Secretary, the individual would be an attributable stakeholder of the company or trust.

(2) The Secretary must consider the relationship between the individual and the company or trust having regard to:

(a) the reason why, but for a determination, the individual would be an attributable stakeholder; and

(3) In particular, the Secretary must consider whether the effect of one or more of the circumstances mentioned in this Part, in relation to the individual and the company or trust, provides a sufficient basis on which to determine that the individual is not an attributable stakeholder of the company or trust.

7 Circumstances affecting relationship with company or trust

(1) The Secretary must consider whether there are relevant circumstances that make it inappropriate for the individual to be an attributable stakeholder of the company or trust.

(2) For subsection (1), relevant circumstances include the extent to which the relationship between the individual and the company or trust is affected by any of the following circumstances:

(a) circumstances arising from the legal structure of the company or trust;

(b) circumstances arising from the administrative arrangements of the company or trust;

(c) whether, having regard to the relationship between the individual and the company or trust, the individual can reasonably be expected to exercise effective control in relation to the company or trust.

If the individual has made a contribution to the company or trust, the Secretary must consider the circumstances in which the contribution was made and, in particular:

(b) the proportion that the value of the contribution has to the total assets of the company or trust at the time of the contribution; and

(c) the effect of the contribution on the financial position of the company or trust; and

(d) if the individual received consideration for the contribution, the amount of consideration.

9 Past benefit from distributions by company or trust

(1) The Secretary must consider whether the individual has received a benefit from a distribution made by the company or trust.

(2) If an individual has received a benefit, the Secretary must also consider:

(b) if the individual has received a benefit on more than 1 occasion, the frequency with which the individual has received benefits.

(3) For this section, a distribution includes distributions:

(a) in the case of a distribution by a company - of the capital or income, or both, of the company; and

(b) in the case of a distribution by a trust - of the corpus or income, or both, of the trust.

10 Future benefit from distributions by company or trust

(1) The Secretary must consider whether it is reasonably foreseeable that the individual may receive a benefit from a future distribution by the company or trust.

(2) If subsection (1) applies, the Secretary must also consider the likely value of the benefit.

(3) For this section, the Secretary must have regard to:

(b) documents, if any, establishing the terms of the trust.

(4) For this section, a distribution includes distributions:

(a) in the case of a distribution by a company - of the capital or income, or both, of the company; and

(b) in the case of a distribution by a trust - of the corpus or income, or both, of the trust.

11 Benefit from assets and income of company or trust

(1) The Secretary must consider whether the individual receives or derives any kind of benefit (other than a benefit mentioned in section 9 or 10) from the assets or income, or both, of the company or trust.

(a) is not limited to a benefit to which the individual has a legal or equitable entitlement; and

(b) includes benefits received or derived in the form of property or services.

(1) The Secretary must consider whether the individual is:

(a) under the Act - an attributable stakeholder of any other company or trust; or

(b) under the Veterans' Entitlements Act 1986 - an attributable stakeholder of the company or trust, or of any other company or trust.

(2) If subsection (1) applies, the Secretary must also consider:

(a) the asset attribution percentage attributed to the individual, if any; and

(b) the income attribution percentage attributed to the individual, if any.

The Secretary must consider any other circumstance that affects the involvement of the individual with the activities or the administration of the company or trust.

Ms Silvers' circumstances relating to the [Trust]

1. If Ms Silvers was not an attributable stakeholder of the [Trust] (prior to its vesting), I consider Centrelink's decisions would be correct. Although the bulk of the distribution for 2023/24 was a capital gain, the distribution would essentially be a gift of money to Ms Silvers. As such, the origin of the gift is essentially irrelevant and the gift, being an income amount under subsection 8(1), would trigger section 1073.
2. If Ms Silvers was an attributable stakeholder of the [ Trust], the outcome is entirely different. As noted, prior to June 2024 Ms Silvers was the principal beneficiary of the [Trust] and the [Protective Trust]. Ms Silvers' father set up the trusts to ensure her financial needs would be met.
3. Post-hearing, pursuant to subsection 63(2) of the Administrative Review Tribunal Act 2024 I asked the Secretary to make written submissions addressing the questions posed. Those questions were:

(i) Upon what formal basis did Centrelink decide [Mr B] remained the sole attributable stakeholder of the [Trust]? What was the reason for the different attribution treatment in July 2014 [of the [Trust] and [the Protective Trust]? Who in the Secretary's opinion is/are the attributable stakeholder(s) of the [Trust]? Assuming Centrelink's original decisions were made with reference to the deeds for both trusts, please provide a copy of those deeds if they remain in Centrelink's possession.

(ii) On the assumption Ms Silvers is the (sole) attributable stakeholder of the [Trust], would the one-off sale of an attributable asset producing a capital gain for tax purposes be ordinary income for social security purposes?

(iii) If the capital gain in not ordinary income, is the correct position to exclude the capital gain from the income to be attributed to an attributable stakeholder?

(iv) If the capital gain from an attributed asset is not attributed income but is distributed to an attributable stakeholder, what is the Secretary's view about the operation of subsection 1207Z(2)?

1. The Secretary's response to these questions was sent to Mr Lukashenok on 21 November 2025. Mr Lukashenok was asked to respond by close of business on 27 November 2025 if he had further submissions. Having not heard from Mr Lukashenok, I have proceeded on the footing that he relies on the submissions already made.
2. The Secretary's response to item (i) is:

[Mr B] was appointed trustee of both [Trust] and [Protective

Trust] in 2010 after the former trustee [Mr C] resigned. The Complex Assessment

Officer (CAO) who reviewed both trusts following this resignation determined that [Mr B]

should be the sole attributable stakeholder as the formal controller of the trusts.

In 2014, a CAO reviewed [Protective Trust]. Loan balances for earlier

financial years were corrected and following speaking with [Mr B] and subsequently

reviewing the Trust deed provided, the CAO decided to change the attribution treatment.

Ms Silvers was attributed with 100% of the [Protective Trust] from 8 July

2014. The 8 July 2014 was used for the date of the change as this was the date the CAO

The CAO who made this decision determined that even though [Mr B] was the formal

controller of the trust, Ms Silvers was the informal controller due to the benefit she was

deriving from the trust. The CAO noted that the trust was formed for the benefit of Ms

Silvers. who was the sole beneficiary of the trust and that trustee, who acts for the benefit of

Ms Silvers, had discretion to distribute capital & income to Ms Silvers.

The CAO who reviewed the [Protective Trust] in 2014 did not complete a

review of the [Trust]. The review of the [Trust] in 2014 was completed

by a different CAO, who chose, as the delegate, not to alter the attribution decision. That

CAO did not speak with [Mr B] and updated the trust as per the financial information

provided for the 2012/13 financial year. The CAO did not document any reconsideration of

See attached Trust deed for [Protective Trust] provided to the CAO in 2014.

There are no other Trust deeds on either Ms Silvers' or [Trust's] electronic record

however we have requested urgent access to any available paper files and will provide any

See also the attached [file notes] for both trusts regarding the reviews undertaken by the

1. In summary, in 2010 Centrelink decided that [Mr B] was the sole attributable stakeholder of both the [Protective Trust] and the [Trust] under the means test treatment of private trusts in Part 3.18. In July 2014, Centrelink decided Ms Silvers was the sole attributable stakeholder of the [Protective Trust] but left its decision regarding the [Trust] untouched.
2. The effect is that, from July 2014, the income and assets of the [Protective Trust] were attributed to Ms Silvers. The income and assets of the [Trust] were at all times attributed to [Mr B]. Different decision makers were involved and it is evident that the decision to treat Ms Silvers as the sole attributable stakeholder of the [Protective Trust] was carefully made.
3. As indicated, the Secretary has provided a copy of the trust deed for the [Protective Trust] but does not have a copy of the trust deed for the [Trust]. Mr Lukashenok was asked to provide a copy of the trust deed if it was available and having not heard from him I presume it is not available. For reasons that will become apparent, I think it is apposite to proceed on the footing that both trust deeds would have been in materially similar terms.
4. There is nothing remarkable about the trust deed for the [Protective Trust]. The terms are typical of a discretionary trust giving broad powers to the trustee to deal with the trust's assets and an absolute discretion to apply the assets and income of the trust to the benefit of the primary beneficiary (Ms Silvers).
5. The trust deed also essentially provides that, on the termination of the trust, the proceeds are to be converted to money and distributed to eligible beneficiaries. As defined, Ms Silvers was the only eligible beneficiary during her lifetime.
6. As the assets of the [Trust] were converted to money on termination and transferred to Ms Silvers, it is safe to conclude that the terms of the trust deed for this trust would have been materially the same as those for the [Protective Trust].
7. Having regard to the Principles, I think the inevitable conclusion is that, at all relevant times, Ms Silvers was the sole attributable stakeholder of the [Trust]. Ms Silvers was the sole beneficiary of the trust and received the trust's income. The assets of the trust were essentially a gift to Ms Silvers to be held for her benefit on the basis that she would be ill-equipped due to injury to deal with the assets herself. Those assets were then given to Ms Silvers when the trust vested.
8. At the hearing [Ms A] indicated [Mr B] was a trustee (of both trusts) as he is an accountant. I understand from [Ms A] that [Mr B] ceased to act in that capacity at some stage as he has advanced Alzheimer's disease. There appears no suggestion that [Mr B] could deal with the funds other than in accordance with his fiduciary duties as trustee and Ms Silvers' father's wishes.
9. Accordingly, Ms Silvers was at all relevant times the sole attributable stakeholder of the [Trust]. The Secretary does not oppose this result.

The correct treatment of the assets and income of the [Trust]

1. The Secretary's response to items (ii) to (iv) is:

Capital gains are treated as ordinary income of the trust for an attributable stakeholder

however if it is a one-off amount that's not part of the normal trading, a reassessment may

The delegate can reduce the distribution income to an attributable stakeholder to align with

1. Consistent with this response, my view is that the capital gain incurred by the [Trust] in 2023/24 is not ordinary income for social security purposes. It is statutory income for tax purposes only and for social security purposes is merely a monetised asset. The exception to this, which is not relevant for present purposes, is where a person's business comprises the buying and selling of assets for profit.
2. As the [Trust]'s capital gain in 2023/24 ($49,941) is not ordinary income, section 1207Y prevents it being attributed to Ms Silvers as ordinary income. Having regard to the trust's Profit and Loss statement, the income to be attributed to Ms Silvers is $1,438 ($51,379 - $49,941).
3. To avoid double-counting, it is appropriate under subsection 1207Z(2) to disregard the [Trust] distribution made to Ms Silvers. Further, as the [Trust] ceased to exist in June 2024, Ms Silvers cannot be attributed with income from the trust after this date.

1. As the debt under review is incorrectly raised on the basis of a distribution from the [Trust] to Ms Silvers, the debt must be revoked.
2. Similarly, the decision under review to reduce Ms Silvers' rate of disability support pension on the basis of distributed income must also be set aside. The rate is instead to be assessed on the basis that the distribution is disregarded and the attribution of income from the trust ceased when the trust was terminated.

The Tribunal sets aside the decisions under review and substitutes the decisions that:

(1) Ms Silvers does not have a disability support pension debt; and

(2) Ms Silvers' rate of disability support pension is assessed on the footing that the distribution from the [Trust] is disregarded and the attribution of income from the trust ceased when the trust was terminated in June 2024.

[1] All further legislative references are to this Act unless otherwise stated.

[2] Ford HAJ and Lee WA, Principles of the Law of Trusts, 2nd ed 1990, Law Book Co. Ltd, Sydney, p 58.