Федеральный верховный суд Англии и Уэльса: отсутствие ответа органа регулирования защиты данных

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 Fa Joes Public House (“Fa Joes”) regarding its response to the Applicant’s Data Subject Access Request (“DSAR”). The complaint was submitted to the Information Commissioner (“IC”) on 30 March 2026 and was dealt with under reference IC-497446-F1C0.

2.On 7 July 2026, the IC’s case officer attempted to contact Fa Joes on several occasions throughout the day using the telephone number publicly available online. However, despite multiple attempts, no response was received from the organisation. The case officer had also left a voicemail requesting a call back.

3.On 8 July 2026, the case officer wrote to Fa Joes requesting a point of contact to be confirmed within 7 days.

4.On 14 July 2026, the case officer provided the Applicant with a formal update, apologising for the delay in progressing the complaint. The case officer explained that, before the concerns raised by the Applicant could be put to Fa Joes, it was necessary to obtain an appropriate point of contact. The Applicant was advised that a further update would be provided once this information had been obtained.

5.On 16 July 2026, the case officer wrote again to the owner of Fa Joes seeking confirmation of the appropriate point of contact for the organisation.

6.On 22 July 2026, the case officer spoke by telephone with the owner of Fa Joes. During the call, it was confirmed that the data sought by the Applicant had not been retained and was therefore unavailable for disclosure to the Applicant. The case officer also provided advice regarding the organisation’s obligations under the UK GDPR.

7.On the same day, the case officer wrote to the Applicant. They explained that, although Fa Joes had confirmed that the data sought was no longer available, the IC had identified an opportunity to improve the organisation’s understanding of its data protection obligations. As a result, compliance advice and guidance were provided to Fa Joes regarding the handling of subject access requests, including the requirement to respond to the Applicant’s request within one calendar month, even where the requested information is not held. The Applicant was advised that the IC would take no further regulatory action in relation to the matter and that the complaint had been closed, although details had been retained for monitoring and intelligence purposes. The Applicant was also informed of their right to seek an independent legal remedy through the courts should they remain dissatisfied.

The Application

8.The Applicant applied to the Tribunal by way of form GRC3 dated 30 June 2026. She stated that the outcome she was seeking was as follows: “I request that the tribunal make an order to the Commissioner to provide me with full details regarding the progress of my complaint and an expected date of resolution .”

9.In her grounds for the Application, the Applicant stated that the reasons for the application was that she had not received a response from the IC within three months of making her complaint. She reiterated that the complaint was important to her and that the failure of the IC to respond had had significant consequences for her.

The strike-out application

10.The IC applied by way of form GRC5 dated 28 July 2026 to strike out the Application on the basis that there is no reasonable prospect of it succeeding under Rule 8(3)(c) (the “strike-out application”).

11.The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 20-22. In summary, these were as follows:

a.

The IC accepts that there was a delay in initially communicating with the Applicant in relation to their complaint. However, the IC has since provided the Applicant with an outcome on the complaint b.

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.

12.Judge Barrett directed that the Applicant should provide representations in relation to the strike out application by 28 August 2026 under Rule 8(4). No response was received from the Applicant, but I am satisfied that the Applicant has had an opportunity to make representations on the proposed striking out under rule 8(4).

Legal framework

13.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.”

14.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.

15.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.”

16.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."

17.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...

”.

18.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).

19.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).

20.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.”

21.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

18.I have decided to deal with this matter without a hearing, as the Applicant indicated that she wished the Application to be determined without a hearing. I note also that Rule 32(4) permits the Tribunal to strike out a case under Rule 8 without an oral hearing.

19.The first question is whether the IC provided an outcome to the Applicant’s complaint. The IC provided the Applicant with a response to her complaint on 22 July 2026. I consider that this response was in fact an outcome to the complaint, because 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.

20.This is sufficient in my view to demonstrate that the IC has complied with the requirements of section 165(4).

21.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.

22.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, in light of the fact that an outcome has been provided to the complaint, the outcome sought by the Applicant in the Application is not something which is within the Tribunal’s power to grant.

23.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.