OK - the DM (the DWP Decision Maker) basically rubber stamps the assessment made by the HCP and awards or does not award points accordingly. Then if the claimant disagrees with the outcome they can ask for a mandatory reconsideration and if that is not satisfactory then they can appeal to the LTT (Lower Tier Tribunal.) The WCA involves a physical assessment but the Tribunal hearing is primarily verbal, although there may be questions about how the appellant got to the hearing, how far did they walk and are they comfortable sitting etc.
Now if 40% of those who decide to appeal win their appeals is it because the tribunals have different criteria to those of the LiMA based WCA?
It's First-tier Tribunal (FtT), not Lower Tier Tribunal. The criteria are the same at each stage - but the way the decision is reached is different, which may explain the differing outcomes.
The Decision Maker has the assessment report in front of them, plus the information supplied by the claimant.
Decision makers can and do depart from the assessment report at times, though this is relatively uncommon and typically happens when a decision maker recognises that the assessor has incorrectly applied the law to their findings of fact. It is difficult for the decision maker making the initial decision to depart from the findings of fact made by the assessor, as they have not met the claimant and are not medically qualified.
On medical matters, the decision maker has to trust the judgment of the assessment provider, though they do have the power to put supplementary questions to the assessment provider if they are not happy with some aspect of the report.
Decision makers have the ability to contact the claimant if they want more information, but this power is often not used. Claimants don't always respond very well to phone calls from the DM.
At reconsideration, the decision maker must weigh any additional submission from the claimant against the evidence already in the file. I have had decisions relating to me overturned at reconsideration by inviting the decision maker to prefer my point of view over the assessment report. I did this by pointing out the coherency of my reconsideration arguments with the entirely of my original submission and the medical evidence I had supplied. However, this sort of thing is not easy to do, especially as the small time window available for reconsideration together with the overload at many advice providers means many claimants have no source of good quality advice or support for reconsideration.
Some claimants ask for reconsideration to take place without making a further submission, either because they are convinced that an obvious error has been made that will be corrected, or because they see no reasonable chance of a favourable reconsideration and want the paperwork to allow appeal to the FtT as quickly as possible.
The FtT is in a different and more privileged position. The panel for an ESA tribunal is a tribunal judge (a barrister or solicitor), sitting with a doctor. This means that the decision is made with expertise in the law and in medicine. A PIP tribunal panel has a third member, who is a disabled person. Sometimes this disabled person has some sort of medical, legal or advice provider background, though this is not compulsory.
By the time a case reaches tribunal, the claimant should have had the chance to read and reflect on the contents of the assessment report before making their submission. Theoretically it is possible for the claimant to obtain the assessment report before requesting reconsideration, but in practice claimants don't always understand they can request the assessment report at that stage and, if the report is requested, DWP don't always send it before the deadline for an in-time reconsideration submission expires. The claimant can wait for the assessment report and risk submitting out of time, but this leaves open the possibility of the reconsideration request being denied as late without good reason.
The delay whilst reconsideration takes place gives greater opportunity for the claimant to obtain advice and/or additional evidence.
The claimant has the chance to request an oral hearing at the FtT, which is strongly recommended, as this gives the panel the chance to meet the claimant and question them directly. Statistics show that the claimant is more likely to succeed at an oral than a paper hearing.
Overall, the success rate for ESA tribunals is far too high, as it indicates far too many decisions are in error. The withdrawal of almost all legal aid funding for welfare rights, almost all of which went to advice organisations like CAB, and the deep cuts to council discretionary spending means that many advice services have had to cut back on the support they can offer at just the time that the disability benefit reforms began to bite hardest (with reassessments from legacy incapacity benefits to ESA taking place in earnest and PIP being introduced).