[2025] UKUT 020 (AAC)

Notwithstanding the force of the Appellant’s submissions and objection, I do admit the fresh evidence provided by the Respondent on this appeal to the UT. I do so for the following reasons, accepting that it was not evidence before the FTT at the time of deciding the appeal in March 2023.

I take into account the tests for admitting fresh evidence on appeal set out in Ladd v Marshall [1954] 1 WLR 1489:

“… first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”

This test was explained as applying to the UT in Donald Graham Ketley v Revenue and Customs [2021] UKUT 218 (‘Ketley’) at [52]-[54] but on the basis that the UT ultimately must apply the tests under Rules 2 and 15 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to decide if it is just and fair to admit the new evidence.

I grant the application to admit the fresh evidence on this appeal to the UT. I have decided that it is just and fair and in accordance with the overriding objective to admit the fresh evidence for the following reasons.

First, the evidence could not have been obtained with reasonable diligence for use at the hearing before the FTT because it related to events that have occurred subsequently. Secondly, it will probably have an important influence on the result of the case because if there has been a decision refusing the Appellant’s entitlement to PIP from 29 July 2022 based upon the second claim, then the FTT will not have erred materially in the outcome of the appeal whether or not its original reasoning and interpretation or application of the law was correct. Thirdly, the evidence is more than credible or cogent – it is incontrovertible and constitutes an undisputed record of subsequent events and it is directly relevant to the legal issues under consideration in the appeal. Furthermore, I am satisfied that in all the circumstances of the case it is just and fair to admit the evidence. The Appellant is not unfairly prejudiced as he has indicated that he has separately appealed to the FTT against the refusal in February 2024 of his second PIP claim, which appeal is outstanding, so he will have an opportunity to challenge the merits of that decision and assert his entitlement to PIP from 29 July 2022.