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Yes, the Supreme Court referred to some evidence that could only have come into existence after the order was made. But that was certainly not the sole basis of the decision.

Paras 50-55 of the judgment detail hypothetical claimants and the (appalling) approach suggested by the Lord Chancellor that a Claimant could forgo optional expenses such as clothes in order to save up to bring a claim. It also addresses the difficulty of saving up money to bring a claim given the 3 month time limit on bringing ET claims.

Para 55 concludes with "More fundamentally, the question arises whether the sacrifice of ordinary and reasonable expenditure can properly be the price of access to one’s rights."

The decision was far from the exercise in pure hindsight that it is being made out to be. The effects of the fees order were both predictable and predicted.