ESA appeal rate refused due to UC claim which was withdrawn

Hello

Just seeing if anyone has had a similar case like this and advice on how you got this resolved.

We have a client who was on ESA in the SG who was then told she was no longer entitled and would need to claim UC.

Due to her being worse off on UC we advised it would be more beneficial to withdraw UC claim and go down ESA appeal route due to SDP element not being included on UC.

The issue we are having is that by the time we withdrew the UC claim it was after the first assessment period had ended.  We took advice from CPAG that as long as no payment was made to the client we could still withdraw at this stage.  DWP did not send any payment out to the client.

Now DWP are refusing to re-instate ESA at the assessment rate as they are saying she has a live UC claim.  However as she has not ever received a UC payment and the claim has been withdrawn how can this be the case?

Has anyone had any similar experiences and how it was eventually resolved as we contact ESA by phone who then say they need to speak to a different department who then need to ring the client back in 24 hours only to be told the same thing that she can’t have ESA re-instated.

Thanks.

Nobody has replied so far, so can I point you to another reply elsewhere? It’s my post at https://www.rightsnet.org.uk/forums/viewthread/12060/#55780
which sounds like it is on the same point.

I assume your case is in Full Service area and I see you were told by CPAG that “as long as no payment was made to the client we could still withdraw at this stage.”  What Simon Osborne suggests at http://www.cpag.org.uk/content/esa-uc is that “Migration to UC is complete in any case where a claimant makes a new ‘claim’ for UC. ‘Claim’ is not defined, and arguably someone who withdraws the claim before it is decided, or whose claim is defective, has not made a claim, but this point is yet to be tested.”

So maybe you have a potential test case here?