Finding contradictory info on this. Previously if an IB appeal is lost, the claiment who requests written reasons (regardless of if they then subsequently appeal), can continue to get reduced rate IS, on the basis that this is still part of the appeals process.

With regards ESA I found the following (page 263 of Disability Rights Handbook): if you appeal the Upper Tribunal, the DWP, HMRC or local authority will put the decision of the tribunal into effect until the appeal is settled". This seems to suggest no ESA no assessment period payment while appealing the Upper Tribunal decision.

However, it then goes on to state "If the decision maker appeals (or intends to appeal), the tribunals decision may be suspended until the appeal is finally decided". This does not appear to apply if the appealent appeals and seems unfair.

Anyone got any clarification on this?

Its been the way for a long time that if the appellant wins his appeal the DWP, if considering looking for leave to appeal, can suspend giving effect to the tribunal’s decision until they abandon or lose the appeal. If the appellant is on reduced rate IS or assessment phase ESA then he merely stays on that until the appeal process is abandoned or exhausted.

If the appellant loses then a further unfairness surfaces. The ESA and IS Regs are worded differently. Paras 24&25 of schedule 1B of the IS regs allow IS to continue to be paid until the “determination of the appeal” (which has obviously interpreted as “the final determination of the appeal”) whereas reg 6 of the ESA Regs stipulates that ESA remains payable until the “appeal is determined by an appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998” (in other words a first tier tribunal).

But but but...

if as usually happens the Upper Tribunal sets aside the First Tier Tribunal's decision and remits it for rehearing, surely you can argue that it no longer HAS been decided by a First Tier Tribunal until the rehearing? The first decision no longer has any value.

Oh how very sophistical, but if that's they way they want it....

Thats an excellent point.