Scenario - client has award of DLA - applies for supersession to secure an increased award - refused by DWP - client appeals - adjournment for EMP report - EMP report not supportive - subsequent tribunal withdraws entire award of DLA.

We become involved at this stage and apply for permission to appeal to the Upper Tribunal. Permission is granted.

Obviously I'm hopeful that the UT appeal will succeed and that the 1st-tier tribunal decision will be set aside.

At that point, 1 of our options is to withdraw the appeal so that the original award is restored. My concern is - won't DWP simply make a new decision, either superseding or revising the last awarding decision on the basis of the unfavourable EMP report, putting us back to square 1? Is it worth trying anyway?

Any input from advisers who have dealt with this type of scenario themselves would be greatly appreciated. Thanks.

I have had this situation - adjournment for EMP report, which was unfavourable - client comes to us for advice - we advise to withdraw appeal, which was done - tribunal mistakenly hear appeal in her absence and remove existing award - decision set aside - DLA superceed exisiting award and remove it due to EMP report - we appeal against new decision and one year later ( after papers are lost by DWP etc ) win the appeal! The risk of an unfavourable supersession due to the EMP report is a real one.

Not sure but under new rules don't you now need to request permission to withdraw from tribunal judge, also it wouldn't prevent the DWP supercedeing decision of entitlement to DLA based on EMP report triggering a new appeal, so you need to balance this against resolving matters now.

We were told by our regional chair that you only need permission to withdraw once the tribunal has started. That includes during any adjournment period. I'm not sure that applies once the tribunal has concluded it's proceedings but the appeal is still live.

Probably academic though in the above scenario but interesting to know for certain for other situations. Any answers anyone?

Any welfare rights advisers in or around the Greater Manchester area interested in these issues are welcome to attend the next meeting of the Great Manchesters Welfare Rights Advisers group meeting on 23rd January. The Regional Tribunal Judge will be attending in the morning to discuss the new tribunal rules. Details at www.gmwrag.org.uk.

My thoughts on the questions above are:

The regulations say that the consent of the Tribunal is required when the request is made orally at a hearing. When a written notice of withdrawal is made at any time before a hearing consent is not needed. SI 2008No.2685 (l.13) paragraph 17.

Presumably it is arguable that the proceedings are not concluded until the tribunal issues the decision, then the remedy would be to apply for set aside. If the second tier tribunal grants this and refers the matter to another tribunal, you can withdraw prior to the new hearing and the original decision makers decision stands. We've used this a few times with success. You do run the risk of another revision or supersession being carried out, but the grounds have to be adequate. An EMP decision by itself is not grounds, if it's simply a different opinion on the same facts used to make the original decision. However it might bring to light a change of circumstances or some new facts which could give rise to a revision.