Трибунал по информационным правам: ст. 166 не позволяет обязать регулятора продолжить проверку DWP

1.These proceedings concern an application (the “Application”) under section 166(2) of the Data Protection Act 2018 (“DPA 2018”) for an order to progress the Applicant’s complaints against the Department for Work and Pensions (“DWP”) regarding the handling of multiple subject access requests dated between October 2025 and March 2026. The complaint was submitted to the Information Commissioner (“IC”) on 29 March 2026 and was dealt with under reference IC-497287-W0K6.

2.On 9 July 2026, the IC acknowledged the complaint and advised that, before it could be considered, the Applicant must provide copies of their original SARs to the DWP, the DWP’s responses, and any subsequent correspondence demonstrating that the complaint had been exhausted at source.

3.On 10 July 2026, a Representative of the Applicant responded to the IC’s request for further information providing an email together with 32 evidence files.

4.On 13 July 2026, following a review of the information provided, the IC sent an email to the Representative and reiterated the need for copies of the original SARs, the DWP’s responses, and evidence that the complaint had been exhausted at source. The IC also requested a signed letter of authority authorising the Representative to act on the Applicant’s behalf. Later that day, the Representative provided the signed authority and further information.

5.On 14 July 2026, the IC acknowledged the signed letter of authority and again reiterated the need for copies of the Applicant’s actual requests to the DWP and the DWP’s responses, rather than summary documents. The Applicant’s Representative advised that the information had been sent in a zip file on 10 July. The IC responded advising that the zip file had not been received and clarified that only key correspondence was required. Later that day, the Representative explained that the zip file had not attached properly to any of their previous emails. The Representative provided four key documents as the IC had requested.

6.On 16 July 2026, following a review of the information provided, the IC’s case officer wrote to the Applicant. He advised that it was difficult to separate the data protection and service issues but considered that the Applicant’s representative had identified information believed to remain outstanding from the SARs. The case officer explained that the IC’s role was that of regulator and his aim was to improve the information rights practices of the organisations brought to his attention. He stated that the IC, as a regulator, did not act on behalf or individuals or have an obligation to resolve complaints to the satisfaction of either party and that its role in cases like this is to refer the matter back to the controller with advice and guidance to assist it in complying with data protection obligations. The case officer informed the Applicant that he had asked the DWP to urgently review its handling of the SARs and provide a clear final response, explaining any information withheld or unavailable. The IC wrote to the DWP the same day requesting that review.

7.On 21 July 2026, the Representative sent an email to the DWP acknowledging their partial response to the Applicant’s concerns. The Representative had copied the IC into the email.

8.On 27 July 2026, the Applicant’s Representative submitted a revised complaint, which included allegations that the DWP had committed criminal offences under section 173 of the DPA 2018. The revised submission also set out a number of alleged breaches of the UK GDPR and further matters relating to the Applicant’s SARs.

9.On 29 July 2026, the IC’s case officer acknowledged the Applicant’s Representative’s email and referred to his letter dated 16 July 2026, which summarised the issues for the DWP to address. The case officer advised that the Applicant had not provided evidence demonstrating a clear intent by the DWP to commit offences under the DPA 2018 and, without supporting material, could not agree with the Representative’s assertions. The case officer reminded the Applicant that if he was seeking a final determination, personal redress or to enforce data rights, he had the right to apply to court and was recommended to seek independent legal advice. Later that day, the Applicant’s Representative expressed dissatisfaction with the IC’s response and asserted that the IC appeared to have contacted the wrong DWP point of contact.

10.On 30 July 2026, the IC advised the Applicant’s Representative that he had forwarded the complaint to the DWP’s Data Protection Officer and provided a copy of his correspondence to the DWP dated 16 July 2026, as requested by the Applicant’s Representative.

The Application

11.The Applicant applied to the Tribunal by way of form GRC3 dated 4 July 2026. He stated that the outcome he was seeking was as follows: “ Direct the ICO to take appropriate steps to respond to complaint DPR2025/126796 within 28 days — and to inform the applicant of progress within 14 days — treating the matter as urgent given the active tribunal proceedings.”

12.In his grounds for the Application, the Applicant stated:

“The ICO received this complaint on 29 March 2026

Three months have now expired – 29 June 2026

No case Officer assigned

No progress update

No outcome

The complaint concerns three false statements by DWP’s Right of Access department about a telephone call recording – each potentially criminal under section 173 DPA 2018.

The recording is directly relevant to active First-tier Tribunal proceedings with a preliminary hearing listed September 2026.”

The strike-out application

13.The IC applied by way of form GRC5 dated 4 August 2026 to strike out the Application on the basis that the Tribunal has no jurisdiction to consider it under Rule 8(2)(a) and/or that there is no reasonable prospect of it succeeding under Rule 8(3)(c) (the “strike-out application”).

14.The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 34 to 37. In summary, these were as follows:

15.The IC has taken appropriate steps to investigate and respond to the Applicant’s complaint and has provided an outcome to him. Accordingly, it is respectfully submitted that the IC has complied with the procedural requirements set out in section 166(1) of the DPA18, and there is therefore no basis for the Tribunal to make an order under section 166(2) DPA18.

16.It is clear that the Applicant disagrees with the outcome provided on his complaint. However, as set out above, section 166 DPA18 does not provide a mechanism by which complainants can challenge the substantive outcome of a complaint. The relief available from the Tribunal on an application under section 166 DPA18 only applies where it is satisfied that the IC has failed in some procedural respect to comply with the requirements of section 166(1) DPA18, limited solely to those orders that are set out in section 166(2) .

17.If the Applicant wishes to seek an order of compliance against the data controller for any alleged breach of his data protection rights, the correct route for him to do so is by way of separate civil proceedings in the County Court or High Court under section 167 of the DPA18.

18.Registrar Bamawo directed that the Applicant should provide representations in relation to the strike out application by 24 August 2026 under Rule 8(4)

19.The Applicant provided a Reply to the Response dated 6 August 2026 (43 pages), which deals with the strike-out application as well as the substantive response, so I am satisfied that the Applicant has had an opportunity to make representations on the proposed striking out under rule 8(4). The Applicant also made a supplementary submission on 24 August 2026. The key points made by the Applicant, in summary, were as follows:

a.

The IC did not engage properly with the Applicant’s complaint and forwarded it to the wrong part of the DWP.

b.

The Applicant considers that sending the Applicant’s document to the DWP and asking them to try harder is not “ investigation to the extent appropriate under section 165(4) ”.

c.

The Applicant argues that the Tribunal had jurisdiction at the time of filing because the IC had failed to respond to the complaint within three months and in fact responded outside the three month period and that it retains jurisdiction.

d.

The Applicant argues that the IC’s letter dated 16 July does not constitute an “outcome” because it is not a conclusive determination of the complaint, but a referral back to the controller.

e.

The Applicant identified the following points which he says demonstrate that the IC omitted “appropriate steps” in handling the complaint.

•

The IC did not properly investigate to the extent appropriate the 46-page complaint filed on 29 March 2026 until 9 July 2026

•

The IC directed its letter to the DWP’s data protection officer, rather than the team which made the alleged criminal false statements, which was a fundamental procedural failing

•

The IC failed properly to verify the response received from the DWP, which is a failure of appropriate investigation of alleged criminal conduct. The Applicant also questions the weight which the IC placed on this evidence.

•

The IC forwarded the Applicant’s document to the DWP rather than investigating it himself. The IC also said to the DWP that he was not in a position to determine whether or not the DWP had complied with its data protection obligations.

•

The IC asked the DWP to respond “as a matter of priority” rather than setting a deadline for its response and requiring a response through use of an Information Notice under section 142.

•

The IC closed the complaint even though DWP’s response was vague, partial and left outstanding questions. This was not investigation to any appropriate extent.

•

The IC did not investigate the alleged criminal offences. The Applicant noted that he seeks the Tribunal to direct the IC to investigate these offences.

•

Further evidence which arrived after 16 July 2026 was not investigated before a response was provided.

•

The IC did not engage with the revised complaint submitted on 27 July 2026.

f.

The Applicant criticises the IC for using its resources to strike out the Application rather use those resources for investigating the matters raised.

g.

The Applicant asks for an order that the IC be directed to take the following steps:

•

Contact the relevant team at DWP

•

Issue an immediate preservation notice under section 149 DPA 2018

•

Issue an Information Notice under section 142.

•

Investigate all five alleged criminal offences

•

Issue an enforcement notice under section 149 requiring DWp to comply with UK GDPR Article 15.

•

Report to the Applicant the outcome of the investigation by 31 August 2026.

h.

It appears that the Applicant is currently engaged in an appeal before another chamber of the First-tier Tribunal where a hearing is scheduled on 14 September 2026 and argues that it cannot attend that hearing without the DWP having disclosed the information sought.

20.The Applicant’s further submissions dated 24 August 2026 (16 pages) raises the following points a.

The IC’s original case officer wrote to the Applicant on 7 August 2026. The Applicant criticises a number of aspects of this communication. It focuses on the fact that the case officer was unaware of these proceedings and the case officer was not aware of matters arising after 16 July 2026, but as the part of the IC dealing with complaints is entirely operationally and functionally separate from its legal team, it seems to me no adverse inference should be drawn from that. I appreciate that the Applicant and his representative were probably not aware of this distinction.

b.

The Applicant also notes that no data has been disclosed by the DWP after nine months. It asserts that the IC could not have read the DWPs response on 29 July, as it wrote closing the case two minutes after the DWP’s response was sent.

c.

The Applicant notes that he has referred the matter to his MP.

Legal framework

21.Section 165 DPA 2018 sets out the right of data subjects to complain to the IC about infringement of their rights under the data protection legislation. Under section 166 DPA 2018 a data subject can make an application to this Tribunal for an order as follows:

“Orders to progress complaints

(1)This section applies where, after a data subject makes a complaint under section 165 or Article 77 of the UK GDPR, the Commissioner a.

fails to take appropriate steps to respond to the complaint, b.

fails to provide the complainant with information about progress on the complaint, or of the outcome of the complaint, before the end of the period of 3 months beginning when the Commissioner received the complaint, or c.

if the Commissioner's consideration of the complaint is not concluded during that period, fails to provide the complainant with such information during a subsequent period of 3 months.

(2)The Tribunal may, on an application by the data subject, make an order requiring the Commissioner d.

to take appropriate steps to respond to the complaint, or e.

to inform the complainant of progress on the complaint, or of the outcome of the complaint, within a period specified in the order.”

22.The Tribunal can only make an order under section 166(2) if one of the conditions at section 166(1) (a), (b) or (c) is met. There have been a number of appeal decisions which have considered the scope of section 166 . It is clearly established that the Tribunal’s powers are limited to procedural issues, rather than the merits or substantive outcome of a complaint.

23.Section 165 deals with the complainant’s right to make a complaint and states that:

“(4)

If the Commissioner receives a complaint under subsection (2), the Commissioner must— (a)take appropriate steps to respond to the complaint, (b)inform the complainant of the outcome of the complaint, (c)inform the complainant of the rights under section 166 , and (d)if asked to do so by the complainant, provide the complainant with further information about how to pursue the complaint.

(5)The reference in subsection (4)(a) to taking appropriate steps in response to a complaint includes— (a)investigating the subject matter of the complaint, to the extent appropriate, and (b)informing the complainant about progress on the complaint, including about whether further investigation or co-ordination with foreign designated authority is necessary.”

24.In the case of Killock v Information Commissioner

[2022] 1 WLR 2241

, the Upper Tribunal at paragraph 74 stated - "

…It is plain from the statutory words that, on an application under

section 166

, the Tribunal will not be concerned and has no power to deal with the merits of the complaint or its outcome. We reach this conclusion on the plain and ordinary meaning of the statutory language but it is supported by the Explanatory Notes to the Act which regard the

section 166 remedy as reflecting the provisions of article 78(2) which are procedural. Any attempt by a party to divert a tribunal from the procedural failings listed in

section 166 towards a decision on the merits of the complaint must be firmly resisted by tribunals."

25.Mostyn J in the High Court in R (Delo) v Information Commissioner

[2023] 1 WLR 1327

, paragraph 57 - "

The treatment of such complaints by the commissioner, as before, remains within his exclusive discretion. He decides the scale of an investigation of a complaint to the extent that he thinks appropriate. He decides therefore whether an investigation is to be short, narrow and light or whether it is to be long, wide and heavy. He decides what weight, if any, to give to the ability of a data subject to apply to a court against a data controller or processor under article 79. And then he decides whether he shall, or shall not, reach a conclusive determination...

”.

26.Mostyn J’s decision in Delo was upheld by the Court of Appeal ( [2023] EWCA Civ 1141

) – “

For the reasons I have given I would uphold the conclusion of the judge at [85] that the legislative scheme requires the Commissioner to receive and consider a complaint and then provides the Commissioner with a broad discretion as to whether to conduct a further investigation and, if so, to what extent. I would further hold, in agreement with the judge, that having done that much the Commissioner is entitled to conclude that it is unnecessary to determine whether there has been an infringement but sufficient to reach and express a view about the likelihood that this is so and to take no further action. By doing so the Commissioner discharges his duty to inform the complainant of the outcome of their complaint

.” (paragraph 80, Warby LJ).

27.The decision of the Upper Tribunal in Cortes v Information Commissioner

(UA-2023-001298-GDPA) which applied both

Killock and Delo confirmed that the nature of

section 166 is that of a limited procedural provision only. “

The Tribunal is tasked with specifying appropriate “steps to respond” and not with assessing the appropriateness of a response that has already been given (which would raise substantial regulatory questions susceptible only to the supervision of the High Court)….As such, the fallacy in the Applicant’s central argument is laid bare. If Professor Engelman is correct, then any data subject who is dissatisfied with the outcome of their complaint to the Commissioner could simply allege that it was reached after an inadequate investigation, and thereby launch a collateral attack on the outcome itself with the aim of the complaint decision being re-made with a different outcome. Such a scenario would be inconsistent with the purport of Article 78.2, the heading and text of

section 166 and the thrust of the decisions and reasoning in both Killock and Veale and R (on the application of Delo). It would also make a nonsense of the jurisdictional demarcation line between the FTT under

section 166 and the High Court on an application for judicial review.”

(paragraph 33).

28.The case of Dr Michael Guy Smith v Information Commissioner

[2025] UKUT 74 (AAC)

, noted at paragraph 60 that “ it is for the Tribunal to decide, applying an objective test, if an “appropriate step” has been omitted, but observe that, in practice, that is unlikely to be the case where an ‘outcome’ has been produced. That is for two main reasons: first, because

section 166 is a procedural provision and, as the principal mechanisms for enforcing rights or challenging the Commissioner are either claims against the data controller or judicial review of the Commissioner,

section 166 should not be used to obtain ‘by the back door’ a remedy normally only available in those proceedings; secondly, because, if the Commissioner has already produced an outcome then, given the very wide discretion that the Commissioner has, both as to what and how to investigate and as to outcome, the scope for the Tribunal to say that an appropriate step has been omitted is limited.” I n considering this the Tribunal must, as set out in paragraph 85 of Killick

“when deciding objectively whether any (further) appropriate step needs to be taken by the Commissioner, take into account and give weight to the views of the Commissioner as an expert regulator.”

29.Paragraph 85 of Killick reads as follows: “

However, in considering appropriateness, the Tribunal will be bound to take into consideration and give weight to the views of the Commissioner as an expert regulator. The GRC is a specialist tribunal and may deploy (as in Platts) its non-legal members appointed to the Tribunal for their expertise. It is nevertheless our view that, in the sphere of complaints, the Commissioner has the institutional competence and is in the best position to decide what investigations she should undertake into any particular issue, and how she should conduct those investigations. As Mr Milford emphasised, her decisions about these matters will be informed not only by the nature of the complaint itself but also by a range of other factors such as her own regulatory priorities, other investigations in the same subject area and her judgment on how to deploy her limited resources most effectively. Any decision of a Tribunal which fails to recognise the wider regulatory context of a complaint and to demonstrate respect for the special position of the Commissioner may be susceptible to appeal in this Chamber.”

Discussion and conclusions

30.I have decided to deal with this matter without a hearing, as the Applicant has stated that he wishes the Application to be determined without a hearing. While I recognise that the fair determination of this case is very important to the Applicant, I do not consider it a proportionate use of resources to require an oral hearing to determine the issue of jurisdiction. I note also that Rule 32(4) permits the Tribunal to strike out a case under Rule 8 without an oral hearing.

31.Turning to the questions before the Tribunal, the first question is whether the IC provided an outcome to the Applicant’s complaint. The IC provided the Applicant with a response to his complaint on 16 July 2026 with a further response on 29 July 2026.

32.I am satisfied that, when taken together, these responses have provided an outcome to the Applicant’s complaint, provided an answer to all outstanding issues and demonstrated that the IC had given consideration to whether there were other appropriate steps which could be taken to progress the Applicant’s complaint. This is sufficient in my view to demonstrate that the IC has complied with the requirements of section 165(4). The fact that the Applicant does not agree with the outcome does not render it wrong in law.

33.The steps identified by the Applicant in his response to the strike-out application in essence amount to taking issue with the adequacy of the IC’s investigation, which is a matter for judicial review in line with the extracts from Smith and Cortes set out above. I refer to the comments in Delo set out above in paragraph 25 as explaining the nature of the IC’s discretion to investigate.

34.It appears to me therefore that there are no further appropriate steps which the IC ought reasonably to take to progress the complaint.

In making this decision I have given significant weight to the view of the IC as the expert regulator that there are no further appropriate steps he should have taken.

35.The outcomes sought by the Applicant in his response to the strike out application are not ones which the Tribunal has the power to order under section 166(2) . The Tribunal cannot order the IC to issue an information or enforcement notice, or to investigate. It appears to me that the criticism of the IC for contacting the data protection officer at the DWP not the team involved in the alleged misconduct is misplaced, because it appears there are established points of contact for the IC in relation to data protection complaints.

36.The outcome sought by the Applicant is also, in effect, challenging the substantive outcome of the complaint to the IC. The Tribunal does not have power under section 166 to consider the merits or substantive outcome of a complaint. Section 166 is limited to narrow procedural issues and there is no further procedural failing in respect of which the Tribunal can make a decision.

In an application under section 166 , the Tribunal has no power to direct the IC to investigate, in a particular way or at all, to take enforcement action to secure compliance with a request or determine whether or not there has been a breach of the UK GDPR. I also agree with the IC’s position that it is not a court or ombudsman and that orders for compliance need to be sought through civil action. Accordingly, I find that the Tribunal does not have the power to grant the outcomes sought.

37.Because I consider that there was an outcome determining the complaint and that there were no further appropriate steps which should be taken, I find the complaint has already been determined and therefore the Tribunal has no jurisdiction over it. I am also satisfied that there is no reasonable prospect of the case, or any part of it, succeeding because the outcome sought by the Applicant is not something which is within the Tribunal’s power to grant.

38.The proceedings are therefore struck out under Rule 8(2)(a) because the Tribunal does not have jurisdiction to deal with them and under Rule 8(3)(c) because there is no reasonable prospect of them succeeding.