Bryars and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal by Mr and Mrs Bryars against decisions of the Secretary of the Department of Social Services regarding their eligibility for the Age Pension (AP) under the assets test. The central dispute revolved around whether the combined assets of the applicants exceeded the allowable assets limit for AP at the time of their claim, specifically in relation to assets held within the Keith Bryars Family Trust.

The court was required to determine whether the Keith Bryars Family Trust was a "controlled private trust" in relation to Mr Bryars, and consequently, whether the assets and income of the Trust were attributable to him for the purposes of the social security means test. This involved considering whether Mr Bryars met the "control" test as a beneficiary and sole trustee, and whether he was an "attributable stakeholder" of the Trust.

The court reasoned that Part 3.18 of the Social Security Act 1991 (Cth) was enacted to ensure comparable treatment for individuals holding assets in private trusts and companies as those holding assets directly. Applying this framework, the court found that the Trust was a "designated private trust" and that Mr Bryars satisfied the "control" test because he was both a beneficiary and the sole trustee, possessing absolute control over the Trust's assets and the ability to apply its income or capital for his own benefit, or to sell assets for less than market value. As Mr Bryars was deemed the sole attributable stakeholder, 100% of the Trust's income and assets were attributable to him.

The court affirmed the decisions under review, finding that the applicants' combined assets, including those of the Trust, exceeded the allowable assets limit for AP at the time of their claim. However, the court noted that the five-year period for certain asset disposals would expire in February and March 2024, after which the applicants might be eligible for part AP if they met other criteria.