DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is as follows. It is given under section 14(8)(a)(i) of the Social Security Act 1998.
2.	The decision of the Darlington appeal tribunal under reference U/44/224/2001/00403, held on 31st January 2002, is erroneous in point of law.
3.	I set it aside and give the decision that the appeal tribunal should have given without making fresh or further findings of fact.
4.	My decision is the same as that of the Secretary of State and the appeal tribunal, except in one respect. That respect is this. The decision superseded was not made on 23rd May 1996. There was no decision made on that date. The decision superseded is the initial decision awarding benefit from some (unknown) date in 1989.
The appeal to the Commissioner
5.	This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with my leave. 
6.	The case raises a technical issue on supersession in incapacity for work cases. It is right and proper that the decision-makers who act in the name of the Secretary of State should implement the legislation correctly. However, the issue carries no practical significance for the claimant. For that reason, I made clear when granting leave that, even if the claimant’s argument was correct on this issue, it would not be a sufficient reason to direct a rehearing. 
The Secretary of State’s decision 
7.	The claimant was accepted as incapable of work from 1989. He received incapacity benefit from its inception on 13th April 1995. On 23rd February 2001, a decision-maker made this decision:
‘I have superseded the decision of the decision maker dated 23.5.96 awarding Incapacity Benefit.
This is because the Secretary of State has received medical evidence following an examination by an approved doctor since that decision was given.
[The claimant] does not meet the incapacity threshold under the personal capability assessment.
As a result [he] is not entitled to Incapacity Benefit from and including 23.2.01.’
8.	On appeal, the appeal tribunal confirmed the decision.
The decision to be superseded
9.	The Secretary of State now accepts that there was no decision given on 23rd May 1996. The reason why that date was used is explained in the response to my direction at page 254. It is not worth the effort of repeating here. It is sufficient to say that the decision that should have been superseded was the one awarding benefit from 1989. The date of that decision is not known. But that does not matter. The Secretary of State points out that the decision-maker and the tribunal superseded the wrong decision and invites me to correct it on appeal. I could do, and have done, that. But I have only done it because the tribunal’s decision was wrong in law on other grounds. I would not have bothered substituting a decision on this ground alone, because the error had no practical effect for the claimant.
The legislation 
10.	The terms of the Secretary of State’s decision clearly refer to regulation 6(2)(g) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. This provides that a supersession decision may be made on the basis that the decision to be superseded
‘is an incapacity benefit decision where there has been an incapacity benefit determination (whether before or after the decision) and where, since the decision was made, the Secretary of State has received medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work) (General) Regulations 1995 from a doctor referred to in paragraph (1) of that regulation’.
11.	Regulation 6(2)(g) applies if there has been a previous ‘incapacity determination’. That expression is defined in regulation 7A(1):
‘“incapacity determination” means a determination whether a person is incapable of work by applying the personal capability assessment in regulation 24 of the Social Security (Incapacity for Work) (General) Regulations 1995 or whether a person is to be treated as incapable of work in accordance with regulation 10 … or 27 … of those Regulations.’
The representative’s argument
12.	The claimant’s representative argues that the Secretary of State is not entitled to rely on regulation 6(2)(g). His argument is this. It only applies if there has been a previous all work test or personal capability assessment, as it is now called, following an examination. He argues that, if there has not been a previous examination, the correct basis for supersession is a change of circumstances. He relies on two submissions made on behalf of the Secretary of State in other appeals. Those submissions are not binding on me. He also relies on a statement by Miss Commissioner Fellner in paragraph 1 of the Common Appendix to CIB/1972 and 3667/2000. She set out regulation 6(2)(g) and wrote:
‘In more familiar terms, this means that a decision awarding incapacity benefit on an earlier All Work Test (AWT – now “personal capability assessment”) may be superseded where the Secretary of State receives the results of another AWT examination. In practice this will occur where a claimant passed the earlier AWT but has failed the later one, and has his benefit stopped accordingly.’
13.	The tribunal went wrong in law by ignoring the representative’s argument. It was put to the tribunal and the tribunal should have dealt with it in its reasons. 
Why the argument is wrong 
14.	I reject the representative’s argument.
15.	The flaw in the argument is that it confuses assessment and examination. The difference is important and appears from the language of the Social Security (Incapacity for Work) (General) Regulations 1995. A person’s capacity for work under the personal capability assessment requires an assessment under regulation 24. The all work test required a test: see the original version of regulation 24. I see no difference between test and assessment – regulation 28 has always referred to ‘assessment’ even when the all work test applied. For the purpose of either, regulation 8 confers on the Secretary of State the power, but not a duty, to call a claimant for medical examination. 
16.	The system is this. The claimant is asked to complete a self-assessment form. The claimant’s GP is asked to complete a questionnaire. They are referred to a doctor for ‘scrutiny’. The doctor has to decide whether the level of disability claimed by the claimant is consistent with the medical evidence. 
17.	If it is, the case is referred to a decision-maker, who makes a determination that the claimant remains incapable of work. That determination is favourable to the claimant. So, no question of supersession arises.
18.	If it is not, the case is referred for what the form calls ‘assessment’. That is an unfortunate choice of word. What it means is a medical examination. When the medical examination is complete, the results are referred to a decision-maker who makes a determination of the claimant’s capacity for work. If that determination is not favourable to the claimant, a decision on supersession is made, which carries the right of appeal. 
19.	The determinations of the claimant’s capacity for work are all assessments. It does not matter that some of them involve a medical examination and some do not. An examination is permissible, but not compulsory. It may be seen as a stage of an assessment or as an evidence gathering process that is preliminary to an assessment. It does not matter how it is described. The result is the same.
20.	As regards Miss Fellner’s comments in CIB/1972 and 3667/2000, she was trying to explain a complicated provision is simpler and clearer terms. She was not interpreting it. Nor was she purporting to. 
Summary
21.	I allow the appeal, because the tribunal did not bother to deal with an argument put by the claimant’s representative. However, a rehearing is not necessary. I have rejected the argument that was put to the tribunal. My reasons remedy the tribunal’s failure to give reasons. There was also an error in the identification of the decision that was superseded. That error was not apparent to the tribunal. It is apparent on the information available to me and I have taken the opportunity to correct it.

Signed on original	Edward Jacobs
Commissioner
24th October 2002