I have a client who was taken off ESA, appealed, but before ESA could start again for the duration of the appeal, he withdrew the appeal. We asked for payment for the weeks his appeal was live, but were refused. Is he due the money for those weeks.

Also, if he had been paid ESA while the appeal was ongoing, but withdrew before a tribunal decision, could DWP recover ESA paid pending the appeal?

See reg 6 ESA regs:

If a claimant has made and is pursuing an appeal, the assessment phase ends when the appeal is determined.

I would interpret this to mean that the assessment phase ends when either:

- the appeal is determined; or
- the claimant stops pursuing the appeal.

The first of those events in your client's case is that he stopped pursuing the appeal. On that basis, I would argue that he is to be treated as having LCW and therefore entitled to payment until the date he withdrew his appeal.

Sorry Tony, didn't see your post before posting mine - fully agree

Brian

I would take the view that the appeal only ceases at the point of withdrawal, as up to that point he is pursuing the appeal (see regulation 30(3) of ESA Regs). Therefore, he should be paid ESA if covered by medical evidence up to the date the appeal is withdrawn, and there should be no question of a recoverable overpayment as he would not have failed to disclose or misrepresented a material fact.

Brian