[2024] UKUT 339 (AAC)

The reasons for which I found Ground 2 not arguable were as follows. The evidence submitted to the First-tier Tribunal was submitted to it after the appeal had on 19 October 2023 been determined, as the First-tier Tribunal pointed out. The failure to take it into account was not an error of law. The principle that evidence post-dating the decision can be taken into account if it evidences the circumstances obtaining at the date of the decision applies to the date of the Secretary of State’s decision (section 12(8)(b) of the Social Security Act 1998). It does not apply where the evidence was supplied to the First-tier Tribunal after the First-tier Tribunal had made its decision. For such evidence to be taken into account and for permission to appeal to be given in relation to it, the evidence would need to satisfy the test in Ladd v Marshall [1954] EWCA Civ 1, [1954] 1 WLR 1489. There was nothing to suggest that the evidence submitted to the First-tier Tribunal on 9 November 2023 would satisfy that test. Indeed, the representative had not even seen that evidence. There was nothing to suggest that it was even material. As the First-tier Tribunal pointed out, functioning was what mattered. A diagnosis alone did not take the claimant’s case far enough.