ESA Appeal, warning of Overpayment if withdraw

Have heard of a couple of client’s who had appealed being found not to have LCW with ESA, were in receipt of the basic level of ESA while appealing, then later they wished to withdraw their appeals.  Each were told by DWP if they withdraw their cases they could incur an overpayment, presumably that would be the basic rate of ESA they received while appealing.  Has anyone else come across this situation and is there any actual risk that someone could incur an overpayment if they were to withdraw their appeal?  In the light of this DWP advice each client then continued with their appeals.

G Regis
A4U

I think the DWP would have difficulty proving an overpayment has occured.

The regs clearly state that the basic rate of ESA is payable pending an appeal.

I agree with Tony and Steve, the only thing I can think of is if the DWP try to say the client has misrepresented the fact that they are incapble of work for the purpose of the new claim, but as the cleint is entitled to appeal and would have provided evidence to support his claim I can’t see how they would argue it.

There is no overpayment.  The law is at least clear on this.  ESA payable whilst appealing ends “from the beginning of the first day of the benefit week following the date on which the Secretary of State was notified by the First-tier tribunal that the appeal is…withdrawn..”.  See Reg 147A(5) ESA Regs.

It’s possible I suppose that a client who notified the tribunal about his wish to withdraw but continued to remain on ESA in error, eg because of a breakdown in communication between tribunal and DWP, might eventually acquire a duty to ensure the DWP are notified, but it’s likely to be rare.

But as far as ESA entitlement prior to the client’s notice of withdrawal to the tribunal is concerned, there’s no overpayment provided he has supplied sick notes whilst appealing.