Briggs and Secretary, Department of Employment and Workplace Relations

[2007] AATA 38

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 38

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos T2006/7  &   T2006/11

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANDREW GEORGE BRIGGS

Applicant

And SECRETARY,  DEPARTMENT  OF EMPLOYMENT  &   WORKPLACE RELATIONS

Respondent

Re WILLIAM JAMES BRIGGS

Applicant

And SECRETARY,  DEPARTMENT  OF EMPLOYMENT  &   WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date29 January 2007

PlaceHobart

Decision The Tribunal affirms the decision under review as varied by the Social Security Appeals Tribunal on 29 November 2005.

..............................................

Senior Member

CATCHWORDS

Social Security - assets and income tests - private trust - attributable stakeholders - attribution percentage - application of Social Security Principles - effective control of the trust - decision under review affirmed

Social Security Act 1991

Social Security (Attributable Stakeholders and Attribution Percentages) Principles 2000

The Guide to Social Security Law

Re Edstein and SDFaCS (2004) 79 ALD 88

Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 1979 2 ALD 634

REASONS FOR DECISION

29 January 2007 Ms A F Cunningham (Senior Member)   

1.         Andrew Briggs has sought the review of a decision made on 29 April 2005 by a Centrelink officer acting as a delegate of the Secretary, Department of Employment & Workplace Relations which determined that Mr Briggs was an attributable stake-holder of the Briggs Property Trust (the Trust) and that 33.33% of the assets and income of the Trust was attributable to him for the purposes of Social Security Law.   This decision was varied by the Social Security Appeals Tribunal (SSAT) on 29 November 2005 by increasing the attribution percentage to 50% with effect from 14 June 2005.   William Briggs has sought the review of a decision made by a Centrelink officer on 29 April 2005 in the same terms as the decision made with respect to Andrew Briggs and outlined above.  This decision was also varied by the Social Security Appeals Tribunal on 29 November 2005 by increasing the attribution percentage to 50% with effect from 14 June 2005.  Both appeals were held concurrently and this is a decision with respect to both appeals.

2.         The applicants contend that the decisions under review are wrong in that they should not be classified as the attributable stake-holders of the Trust for the true legal controllers are the appointors named in the Trust, Heather Ann Edmonds and Barbara Ruth Pendle.  The applicants maintain that while they together with their sister, Hannah Margaret Briggs are named in the Trust Deed of Settlement as primary beneficiaries, no benefit has been distributed by the Trust since its inception and they should instead be regarded as potential beneficiaries. 

3.         Mr Andrew Briggs and Mr Williams Briggs’ partner are recipients of a parenting payment.  Pursuant to the provisions of the Social Security Act 1991 (the Act) the income and value of assets owned by Andrew Briggs and William Briggs may affect the payment of these pensions. If a person’s income or asset value exceeds a prescribed limit, the rate of pension would be adjusted accordingly. From 1 January 2002 the Government passed legislation which varied the means test treatment of private companies and private trusts with the effect that the assets and income of a trust structure will be attributable to the person or persons who control the company or trust or the person or persons who were the source of the capital or corpus of the company or trust. The relevant legislation is contained in chapter 3, part 3.18 of the Act and in the Social Security (Attributable Stakeholders and Attribution Percentages) Principles 2000 (the Principles).

Background

4.         The issues for the Tribunal to decide are whether the assets and income of the Trust are to be treated as assets and income of the applicants for the purposes of the Social Security Law.  The following background facts giving rise to the issues before the Tribunal did not appear to be in contention and the Tribunal finds as follows:

1.        On 16 November 2000, the applicants’ signed a Deed of Settlement           under which the Briggs Property Trust (the Trust) was established.  Both   applicants and their sister, Hannah Margaret Briggs, were named as trustees      and primary beneficiaries of the Trust. 

2.        The primary reason for the creation of the Trust was to enable the   applicants’ parents, Kevin George Briggs and Margaret Louise Briggs to take    advantage of the Farm Family Restart Scheme Re-establishment Grant.  In     order for the applicants’ parents to qualify for a grant under the Scheme, they     had to sell their property “in an arms length transaction”.

3.        A contract for the sale of the property known as “Ponderosa” at 13436       Lake Highway, Golden Valley in Tasmania, was made on 16 November 2000     between Kevin George Briggs and Margaret Louise Briggs as vendors and      Andrew George Briggs, William James Briggs and Hannah Margaret Briggs,      acting as trustees for the Trust, as purchasers.  The purchase            price was      stated as $200,000.00.  

4.        On 16 November 2000 a Memorandum of Agreement was signed by          the vendors and purchasers of the property known as Ponderosa which   recorded that on the sale of Ponderosa to the Trust the vendors would lend to     the trustees the sum of $92,000.00 repayable by instalments with interest at            the rate of 3.5% per annum.  The current outstanding balance is            approximately $70,000.00.

5.        For the financial year ending 30 June 2000, the Trust had net assets of      $68,000.40 and income of $10.00.  For the financial year ending 30 June           2004, the income remained the same and the net assets had increased to         $157,751.00.

6.        On 13 September 2004, Hannah Margaret Briggs signed a Deed of            Retirement from the Trust. 

Legislation

5. Part 3.18 of the Act is headed Means Test Treatment of Private Companies and Private Trusts. Section 1207 provides a simplified outline of the Part as follows:

“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”.

6.         Section 1207P states that a trust is a designated private trust unless:

“(a) all of the following conditions are satisfied:

(i)         the trust is a fixed trust;

(ii)       the units in the trust are held by 50 or more persons;

(iii)      the trust was not created, continued in existence or operated under a                  scheme that was entered into or carried out for the sole or dominant                    purpose of enabling any individual or individuals to avoid the   application of this Part and/or Division 11A of Part IIIB of the Veterans'                 Entitlements Act; or

(b) the trust is a complying superannuation fund (see subsection (3)); or

(c) the trust is an excluded trust (see subsection (4))”.

7.         As the Trust is a discretionary trust it does not meet the criteria for subsection (a).  As the trust is not a complying superannuation fund subsection (b) does not apply.  The Trust does not fall within subparagraph 4 as the Secretary has not declared it as such, so subsection (c) does not apply.  Accordingly the Trust must be classified as a designated private trust under the provisions of section 1207P. 

8.         The next question arising is whether the Trust is a “controlled private trust”.  Section 1207V subsection (1) states:

(1)  For the purposes of ...

(a)      the individual passes the control test set out in subsection (2); or

(b)       the individual passes the source test set out in subsection (3)”.

9.         It was contended by the respondent that the applicants meet the relevant criteria in relation to the control test and that it is not necessary to consider the source test criteria, although it is arguable the respondent contented, that the applicants also meet the source test criteria.   This issue however was not pursued at the appeal hearing and the Tribunal makes no findings in relation to the source test.

10.       Subsection 1207V(2) sets out criteria for the control test being as follows:

“For the purposes of ...  

(a)      the individual, or an associate of the individual (other than an associate covered by   paragraph 1207C(1)(j)), is the trustee, or any of the trustees, of the trust; or

(b)       a group in relation to the individual was able to remove or appoint the trustee, or any of                 the trustees, of the trust; or

(c)       a group in relation to the individual was able to vary the trust deed or to veto the decisions              of the trustee; or

(d)       the aggregate of:

(i)       the beneficial interests in the corpus or income of the trust held by the individual          (whether directly or indirectly); and

(ii)       the beneficial interests in the corpus or income of the trust held by associates of                the individual (whether directly or indirectly);

is 50% or more; or

(e)       a group in relation to the individual had the power (by means of the exercise by the group               of any power of appointment or revocation or otherwise) to obtain, with or without the   consent of any other entity, the beneficial enjoyment of the corpus or income of the trust;               or

(f)       a group in relation to the individual was able in any manner whatsoever, whether directly                or indirectly, to control the application of the corpus or income of the trust; or

(g)       a group in relation to the individual was capable under a scheme of gaining the enjoyment              or the control referred to in paragraph (e) or (f); or

(h)       a trustee of the trust was accustomed or under an obligation (whether formally or                informally) or might reasonably be expected to act in accordance with the directions,   instructions or wishes of a group in relation to the individual”.

11.      As the provisions of subparagraph (a) above provide, an individual passes the control test if he is a trustee of the trust.  Both Andrew and William Briggs are and were trustees of the Trust at the relevant time.  As one of the criteria for the control test is satisfied under this subsection, pursuant to section 1207V(1) the Trust is deemed to be a controlled private trust.  It may be that the appointers under the Trust also meet one of the control test criteria but as the subsection requires compliance with only one of the criteria, this does not avoid a finding that the applicants pass the control test on the basis of being trustees of the Trust. 

12.      The other issues to be decided are whether the applicants are attributable stakeholders and if so what asset and or income attribution percentage should be attributed. 

13.      The relevant provisions are contained in Division 6 of the Act where section 1207X(2) states:

“Trust

(2)      For the purposes of this Part, if:

(a)      a trust is a controlled private trust in relation to an individual; and
           (b)      the trust is not a concessional primary production trust in relation to the individual                (see section 1208U);

then:

(c)       the individual is an attributable stakeholder of the trust unless the Secretary                    otherwise determines; and

(d)      if the individual is an attributable stakeholder of the trust–the individual's asset                   attribution percentage in relation to the trust is:

(i)       100%; or

(ii)       if the Secretary determines a lower percentage in relation to the    individual and            the trust–that lower percentage; and

(e)      if the individual is an attributable stakeholder of the trust–the individual's income                 attribution percentage in relation to the trust is:

(i)       100%; or

(ii)       if the Secretary determines a lower percentage in relation to the    individual and the trust–that lower percentage.

(3)      A determination under this section is to be in writing.

(4)      A determination under this section has effect accordingly.

(5)       

In making a determination under this section, the Secretary must comply with      any relevant decision‑making principles”.

14.  The issues that arise are on what bases would it be determined that the applicants’ are not attributable stakeholders and if they are, whether a lower percentage than 100% should be ascribed.  There is no definition of an attributable stakeholder under the Act but subsection 5 states that “In making a determination ... the Secretary must comply with any relevant decision-making principles”.  The relevant decision-making principles are those entitled the Social Security (Attributable Stakeholders and Attribution Percentages) Principles 2000. The purpose in Part 1 paragraph 4 of the Principles is stated as:

“These Principles set out decision-making principles with which the Secretary must comply in making a determination, under section 1207X of the Act, that:

(a) an individual is not an attributable stakeholder or a company or trust; or

(b) a specified percentage, lower than 100%, is the asset attribution percentage, or income attribution”.

The principles relevant to a determination that an individual is not an attributable stakeholder are contained Part 2.   Again the Purpose as contained in paragraph 5 specifically states that the Secretary must comply with the decision-making principles 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. 

15.      Paragraph 7 sets out the circumstances that are to be considered in the determination which include the extent to which the relationship between the individual and the trust is affected by the legal structure, the administrative arrangements and whether the individual can reasonably be expected to exercise “effective control” in relation to the company or trust.  Other considerations under Part 2 include whether an individual has made a contribution to the trust; has received a benefit from a distribution; whether it is reasonably foreseeable that the individual may receive a benefit from a future distribution by the trust; whether the individual receives or derives any other kind of benefit from the assets or income of the trust; any other circumstances that affect the involvement of the individual with the activities or administration of the trust. 

16.      The Tribunal has no hesitation in finding that regard should be had to these Principles in the current circumstances.  Such an approach is consistent with the approach of the Federal Court and other Tribunals and indeed the provisions of section 1207X(5) require compliance.  Other Courts and Tribunals have applied guidelines and government policy to assist with the making of a determination provided that the policy or guideline is not inconsistent with relevant legislation or that its application may produce an unjust decision in the circumstances of a particular case. (See Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 and Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 1979 2 ALD 634). The application and reference to relevant guidelines and government policy has been adopted where there has been no statutory requirement to refer to such guidelines or policy. In the present case the provisions of subsection 1207X(5) require reference to relevant principles and mandate compliance.

Legal Structure

17.      It is the contention of the applicants that the legal and actual controllers of the trust are the appointors.  Under the terms of the Trust the appointors (or survivors) have the power to increase or reduce the number of trustees, remove a trustee and appoint a new or additional trustee.  The same clause (clause 16) makes provision for the trustees to exercise the same power in the event that there is no appointor. 

18.      The evidence was that the appointors have not exercised such powers and have effectively had no input into the running of the Trust.  In giving evidence to this Tribunal, Andrew Briggs confirmed his evidence to the SSAT that his contact with the appointors had been limited to the sending of Christmas cards and the odd social e-mail.  There was no further evidence provided to this Tribunal of any contact between the trustees and the appointors in relation to the operation of the Trust.  William Briggs stated that he would not make any significant decisions without involving the appointors.  He agreed that Andrew Briggs undertakes most of the day to day Trust administration.

19.      There was no evidence before the Tribunal that the appointors had been involved with any significant decisions and indeed there is no provision in the Trust Deed requiring that they be consulted.  The provisions of the Deed instead provide otherwise.  Under the terms of the Trust Deed, the trustees have wide and unfetted powers to operate the Trust essentially as they see fit.  In the interpretation section of the Deed the terms “as the trustee thinks fit” and “the trustee has he thinks fit” are stated to “give the trustee the widest possible discretion including where applicable the power to prefer one or other beneficiary to the total exclusion of any other or others of them”.  The powers of the trustees under the Deed which are exercisable at their sole absolute and uncontrolled discretion, include the power to distribute income to beneficiaries in such proportions and in such manner as the trustees think fit, power to distribute capital, power to invest moneys forming part of the capital, power to advance or lend moneys, power to borrow and raise moneys, power to purchase and sell property and so forth.  There is also power to delegate and appoint an alternate trustee and vary or modify, alter or add provisions to the Deed.

20.      The terms of paragraph 11 state:

“NO FETTERING OF TRUSTEE’S POWERS

SUBJECT always to any express provision to the contrary herein contained every discretion vested in the Trustee shall be absolute and uncontrolled and every power vested in him shall be exercisable at his sole absolute and uncontrolled discretion and the Trustee shall have the sole discretion in deciding whether or not to exercise any such power. ...”

21.      Neither of the applicants could point to or was aware of any provision in the Deed that fettered their powers.  There is certainly no provision in the Deed that gives any over-riding power or authority to the appointors.  It is within the power of the trustees to sell all of the assets of the Trust and distribute the proceeds to themselves as the primary beneficiaries named in the Trust. 

22.      The fact that no distributions have been made under the Trust is not a determinative factor as to whether or not the individuals are attributable stakeholders under the provisions of the Trust Deed.  The structure of the Trust affords the trustees absolute and unfettered power to make distributions to the beneficiaries as they see fit. 

Administrative Arrangements

23.The Tribunal was informed that the settlor of the Trust is no longer involved in the operation of the Trust.  The evidence was and the Trust Deed provides for the administrative operations of the Trust to be carried out by the trustees.  There is no other provision in the Deed that provides for the involvement of any other person in the administrative arrangements of the Trust.

Effective Control

24.      It was the applicants’ strong contention that effective control of the Trust lies with the appointors and not the trustees.  As outlined above however, this contention is not supported by the evidence.  The only real involvement by the appointors and this seems to have been minor, was in the establishment of the Trust.  Whilst under the Trust Deed the appointors have the power to remove and appoint additional trustees, this power of itself does not necessarily constitute “effective control” within the meaning of the principal enunciated in Paragraph 7.   The ultimate power under the Trust rests with the trustees who can determine the distribution date, have power to sell the assets and distribute the proceeds to the beneficiaries as they deem fit (see paragraph 4.5 of the Trust Deed).  The letter from the appointors tended in evidence stating their understanding of effective control is inconsistent with the terms of the Trust Deed and of no assistance in the Tribunal’s determination.

25.      Whilst the Deed contemplates that the field of beneficiaries could be extended to include other relatives of Kevin and Margaret Briggs, the distribution of trust income and property to the beneficiaries is at the sole and absolute discretion of the trustees.  As they are named as primary beneficiaries, it is within the applicants’ power to distribute solely to themselves.   This power is unfetted and not subject to the consent of the appointors or any other person.  The trustees effectively exercise absolute and unfetted discretion in relation to the operation of the Trust.

26.      On the basis of the expressed terms of the Trust which names both applicants as primary beneficiaries, it must be reasonably foreseeable that they may receive a benefit from a future distribution of the Trust.  No other beneficiaries are specifically named and on the balance of probabilities now that Hannah Briggs has been removed as a primary beneficiary under the Trust, it is reasonable to conclude that prima facie and in the absence of any evidence to the contrary that Andrew Briggs and William Briggs may receive a benefit from a future distribution by the Trust.  The evidence was that the financial resources of the Trust are improving.  It was Andrew Briggs’ evidence that between $30,000 and $40,000 is owed to the Trust for the  harvesting of timber on land belonging to the Trust.  A lease is currently being drawn up between the Trust and Gunns Limited for the plantation of trees on the property belonging to the Trust.

27.      Andrew Briggs currently lives in a residence on property belonging to the Trust.  Andrew Briggs disputed the findings of the SSAT that a nominal amount of $10.00 was paid by the Briggs Family Group to the Trust for rental for the property but was unable to inform the Tribunal of the precise terms of the lease.  William Briggs confirmed the nominal lease amount of $10.00 but understood that there were other arrangements for the payment of expenses including insurance and the like.  The profit and loss statement for the year ending 30 June 2002 shows total revenue as being derived from rent in the sum of $10.00.  The same figures are reported for the financial years ending 30 June 2003 and 30 June 2004.  On the basis of the evidence available, the Tribunal concludes Andrew Briggs has derived a benefit from the Trust property in the form of accommodation.  It would appear that this benefit has operated from 2002.  As stated in the Principles, benefits received from a Trust can be in the form of property or services.  The applicants’ references to previous statements to Centrelink officers in relation to the lease, unsupported by other evidence, including relevant documents is of no persuasive value.

28.      For the above reasons the Tribunal is satisfied that there are no relevant circumstances as outlined in the Principles upon which the Tribunal could reasonably conclude that the applicants are not attributable stakeholders of the Trust. 

29.      The available evidence relevant to the original decision made on 29 April 2005 supports the Tribunal’s findings as outlined above.  The further information contained in the applicants’ submissions to the Tribunal following the hearing  regarding current lease arrangements between the Trust and the Briggs Family Group could not and is not relevant to the Tribunal’s deliberations as to whether the original decision made on 29 April 2005 as varied by the SSAT on 29 November 2005 was the correct or preferable decision.  The Tribunal can only take account of the circumstances as they existed at that time and on the basis of the evidence that was produced at the hearing.

30.      The evidence was and the Tribunal accepts that there has been no distribution of trust assets or income to any beneficiaries under the Trust.  The applicants contend that any distribution would be undertaken by the trustees acting on the advice of the appointors.  This may be the trustees intention but the provisions of the Trust Deed do not require that the trustees consult with the appointors before making any distribution to beneficiaries.  This would include  a distribution to the primary beneficiaries under the Trust being the applicants’ themselves.  It was the evidence of both applicants that they have no current intentions of making a distribution as their object is to build up the assets of the Trust and meet present debts from income derived.  It is not necessary however, that an individual receive a benefit under a Trust before he can be classified as an attributable stakeholder.

31.      The Tribunal in Re Edstein and SDFaCS (2004) 79 ALD 88 concluded that it was irrelevant that the applicant had not accessed any of the designated trust funds as it was sufficient that he had the capacity to do so. The Tribunal said at paragraphs 12, 13, 14 and 15:

“Mr Edstein says that if he is an attributable stakeholder, then he shouldn’t have any income attributed to him because he doesn’t intend taking money out of the trust ... he has not taken any money in the past, and does not derive any benefit other than gratification that accompany control.  After having regard to the principles, one is compelled to ask the question if (he) is not “in practice” taking any money out ... why not effectively ignore the income ... when calculating age pension.  I think the answer lies in the policy underlying the Act.  That policy was explained in the second reading speech ...  The Act and the intrinsic material make it clear the Social Security system is intended to provide relief to those genuinely in need.  If one does not need help ... one must not look to the taxpayer for assistance.  One should provide for ones self as far as possible ...”

32.      The explanatory memorandum to the amending provisions for the revised 2002 legislation included the following:

“ ... Social Security pensions and allowance payments are intended for people who, because of age, disability, unemployment, or caring responsibilities, are unable to adequately support themselves.  Social Security payments are targeted to those most in need through assets and income tests – together known as “the means test”.  The means test is the fairest way to ensure that the limited taxpayer funds available for social security expenditure go to those in greatest need.

The assets test is based on the principle that people with substantial assets apart from their home should use those assets either directly or to produce income to meet day to day living expenses before calling upon community resources for income support through the social security system.  In order to encourage customers to maximise their private income from employment or investments, an “income free area” is allowed before income starts to affect social security payments.

A key principle of our social security system is that people with similar levels of private resources should receive similar pension or allowance payments.  However the existing means test treatment of private trusts and private companies is inconsistent with the principles underlying affective targeting of social security payments.  Under current social security law, assets and income are only attributed to a person where legal ownership or a fixed right to income is established.  This means that private trusts and private companies may be used to hold and control assets and/or income outside the scope of the means test”.

33.      Under the subject Trust Deed, it is clearly open to both applicants as trustees of the BPT to decide at their discretion and at a timing of their choice to distribute trust property and income to themselves.  In the absence of a determination that they are attributable stakeholders under the Trust, the effect would be that this income and asset distribution would not be assessed under the provisions of the Social Security Act in the calculation of a pension entitlement.   This situation is clearly one that the amended legislation introduced in 2002 sought to address.  A determination that the applicants are attributable stakeholders does not necessarily preclude them from receipt of social security benefits particularly if they have not received a financial distribution under the Trust.

34.      The applicants have gone to some length to persuade the Tribunal to accept the findings of various Centrelink officers where their decisions support their arguments.  Such findings however have no determinative value for this Tribunal which is entrusted with the responsibility of applying the relevant legislation to the evidence before it.  The applicants further contended that as they are only potential beneficiaries under the Trust they could not be found to exercise effective control.  The findings of the Tribunal relate to the powers exercised by the applicants as trustees under the Trust.  It is of significance that the applicants are not only the two remaining trustees of the Trust but are also the only named beneficiaries because they have an unfetted discretion to make decisions to benefit only themselves in the form of income and asset distributions. 

Attribution Percentages

35.      The Tribunal sees no reason to vary the findings of the SSAT which determined that the attribution percentage for each applicant was 33.3% until 14 June 2005 and 50% from 14 June 2005 being the date of Hannah Briggs’ resignation from the Trust.  This determination was made pursuant to Clause 4.12.2.10 of The Guide to Social Security Law which states where there are multiple stakeholders of a controlled private trust, the assets and income of the structure are to be attributed in a percentage determined by the level of control exhibited by the individual.

36.      Whilst it was the applicants’ evidence that Andrew Briggs is primarily responsible for the day to day management of the property, which is the substantive asset of the Trust, the Trust Deed makes no distinction between the powers and responsibilities of the two trustees.  They are each entrusted with the same level of power and discretion.  This provides a sufficient basis upon which a determination of a percentage lower than 100% should be attributed.  Up until 14 June 2005 there were three attributable stakeholders in the BPT, each exercising effective control under the terms of the Trust on the same bases.  Accordingly an attribution percentage of 33.3% to each attributable stakeholder was appropriate up until that date.  From 14 June 2005 the two remaining trustees, Andrew Briggs and William Briggs became the attributable stakeholders upon the retirement of Hannah Briggs and it is thus appropriate to vary the attribution percentage from that date to 50% for each attributable stakeholder. 

37.      For the above reasons the Tribunal affirms the decision under review as varied by the Social Security Appeals Tribunal on 29 November 2005.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

Signed:  R Hunt  (Administrative Assistant)

Date/s of Hearing  20 October 2006
Date of Decision  29 January 2007
Representative for the Applicants             Mr Kevin Briggs
Counsel for the Respondent                     Mr B Sparkes
Solicitor for the Respondent  Centrelink Legal Services