The arguability test explained — Key lessons from Scottish tribunal appeals

Applications for permission to appeal (PTA) to the Upper Tribunal for Scotland frequently raise questions about the boundary between fact and law and the scope of the arguability test.

These issues appear across Scotland’s tribunal system where appeals proceed only on points of law. This article is a reflection on several themes that practitioners routinely encounter when preparing or responding to PTA applications.

The arguability test

A proposed appeal must identify an error of law and avoid factual disagreements. The number of proposed grounds do not affect the test. A single coherent ground may satisfy the requirement; multiple diffuse or repetitive grounds will not.

The PTA stage is intended to act as a filter and it preserves resources for cases raising genuine issues of law while excluding attempts to re-try matters of fact or credibility. Section 46(2) of the Tribunals (Scotland) Act 2024 restricts appeals to the Upper Tribunal for Scotland (UTS) to points of law. A decision of the First-tier Tribunal for Scotland (FTS) can only be overturned if it is wrong in law (Edwards v Bairstow [1956] AC 14 at 38).

The grounds must also be arguable on a material point of law (PY v Social Security Scotland 2024 UT 48 at 14). This means that even if the grounds of appeal succeed, they must make a difference to the outcome. If the grounds would not make a difference to the outcome of the case, even if they succeed, they are not arguable.

Reasons in the decision and consideration of evidence

A common ground of appeal is that the decision gave inadequate reasoning and did not give regard to a specific piece of evidence. A decision of the FTS does not need to explicitly refer to all the evidence it had before it. The test for adequacy of reasons is contained in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345. The tribunal must: 

“give proper and adequate reasons for [its] decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader […] in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it". 

A decision of the FTS must be read in the round. The decision is read by the parties who are aware of the background and the legal and factual issues involved so it does not need to give the whole history of the case. If every aspect of the case and every piece of written and oral evidence is not referred to, this cannot be taken to mean that the said aspect or evidence has not been considered.

When multiple grounds complicate the analysis

PTA applications containing several grounds often obscure, rather than clarify, the central contention. Practitioners will recognise the tendency for multiple grounds to overlap, repeat the same theme in different language or mix factual disagreement with legal error.

In such cases, it becomes important to distinguish whether the grounds genuinely identify discrete legal points or whether they are variations on a factual disagreement. The number of grounds does not create merit. The tribunal’s task is to assess whether any ground, taken on its own terms, raises a legally cognisable issue capable of altering the outcome.

Differences between a factual disagreement and an error of law

A common difficulty arises when applicants attempt to repackage dissatisfaction with factual findings as purported legal error. Assertions that a tribunal misinterpreted the evidence, failed to give adequate weight to a particular document, or preferred one witness over another will not, without more, meet the arguability test.

A genuine error of law requires something recognisable in doctrinal terms:

• Misapplication of a statutory test;
• Misdirection in the law;
• Reliance on irrelevant considerations;
• Omission of something material;
• Irrationality; or
• A procedural failure affecting fairness

Without one of these features, the challenge remains a dispute about factual evaluation, which does not fall within the jurisdiction of the UTS.

When claims of unfairness become a legal issue

Allegations of procedural unfairness require careful articulation. To constitute a point of law, the applicant must identify the specific procedural step said to be defective and explain how it could realistically have influenced the outcome. General statements that a hearing was ‘unfair’ will not suffice.

These principles reflect longstanding administrative law doctrine: procedural failures matter only where they are capable of producing a different outcome in practice.

Clear structure in PTA applications

The structure of a PTA application substantially affects its clarity. Separately numbered grounds, succinct statements of the relevant legal principles and concise explanations of how the alleged error arose all assist the tribunal in applying the statutory test.

Structured applications promote transparency and help the UTS understand the grounds clearly. A methodical approach benefits all parties.

Ensuring accuracy of authorities in the era of digital research tools

Another emerging theme is the reliability of digital research tools. The growing use of automated and AI-assisted research tools has increased the risk of encountering case citations or statutory references that appear plausible but cannot be traced to any authoritative source. This has been noted by the UTS without making any inference.

Whatever research methods are used, practitioners should verify authorities through established legal databases. Accurate citation is essential to maintaining the integrity of appellate practice and to maintain credibility.

Closing reflections

The principles described above apply broadly across Scotland’s tribunals. Identifying a genuine point of law, distinguishing it from factual disagreement, articulating procedural concerns with precision and ensuring the accuracy of authorities are requirements common to all tribunals.

The arguability test is an essential safeguard within the PTA structure. It ensures that legal challenges with substance are allowed to proceed while filtering out those that do not raise an error of law. For practitioners, the key disciplines remain clarity of drafting, precision in identifying legal issues, resisting the temptation to add multiple variations of the same grounds and careful verification of authorities. Multiple ground applications, in particular, benefit from a focused and structured approach that distinguishes genuine legal questions from broader dissatisfaction with the outcome.

Ahsan Mustafa is a senior associate in the banking litigation team at Aberdein Considine LLP.