Информационный трибунал Великобритании: попытка возобновить жалобу на комиссара по медицинским данным отклонена

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 an individual data controller who had provided medical treatment to a member of his family but did not provide details of the treatment in response to a subsequent request. The complaint was submitted to the Information Commissioner (“IC”) on 13 February 2026 and was dealt with under reference IC-480853-J5D1.

2.On 15 April 2026, the IC wrote to the Applicant informing him this was not something the IC could investigate. This was because, under data protection law, the IC does not have the power to handle complaints which are solely about an organisation’s customer service or should have gone to another organisation or regulator for them to deal with.

3.The Applicant responded on 19 April 2026 saying that he was disappointed that the IC had misinterpreted his complaint. He stated that this was not a customer service matter, but a clear breach of GDPR by the data controller failing to store, back up or provide the information in question. He requested a review.

4.On 1 May 2026, the IC’s case officer wrote to the Applicant following review of all the information provided and stated that the decision remained the same. They noted that this was considered in line with the IC’s published framework and stated that the IC would not be responding further to the complaint. They advised the Applicant of their right to take action in court or to complain to the Parliamentary and Health Service Ombudsman (PHSO).

5.On 21 May 2026, the IC’s case officer wrote again to the Applicant by email. They explained that although the Applicant considered his request for information to be a request for personal data, the information would only be the data relating to the natural person in question and not details of the treatment itself. The case officer noted that without further detail on the information sought it would be hard to confirm whether the information in question is in fact personal data. The case officer also explained that as the controller has stated they no longer have the requested data, there is little the IC could do to help obtain it. They noted that the data protection legislation does not specify for how long a data controller should retain personal data, so there would be no problem with the controller disposing of the data, provided they did so before it was requested. As the data controller was no longer operating in the UK, the IC concluded that there would be little or no impact the IC could have by taking any further action in this instance and it would be difficult for the IC to confirm whether there has been any failure to comply with the legislation.

The Application

6.The Applicant applied to the Tribunal by way of form GRC1 dated 4 May 2026 and this was accepted by the Tribunal as an application under section 166 of the DPA 2018. He stated that the outcome he was seeking was as follows: “ ICO made to take up the complaint and deal with it correctly ”.

7.In his grounds for the Application, the Applicant stated that he had lodged the appeal against the IC’s decision to refuse to take up his complaint about the data controller failing to provide the information requested. He stated that he did not accept the data controller’s assertions that they have moved outside the UK or that the treatment information had been lost. The nature of the complaint to the IC was the data controller’s failure to provide the information requested and/or failure to keep the information safely and securely. He stated “ the ICO deliberately misrepresented our complaint as a customer service matter and then attempted to maintain it was not in their purview”.

The strike-out application

8.The IC applied by way of form GRC5 dated 4 June 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”).

9.The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 30 to 34. In summary, these were as follows:

a.

The remedies sought by the Applicant in relation to this matter are not within those available to the Tribunal under section 166 DPA18. An Application under section 166 DPA18 permits a Tribunal to make an order against the IC only if he has failed in some procedural respect.

b.

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.

c.

It is clear that the Applicant disagrees with the outcome provided on his complaint. However, 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) .

d.

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.

10.On 25 June 2026, the Tribunal’s Registrar invited the Applicant to provide representations in relation to the strike out application by 9 July 2026 under Rule 8(4). The Applicant did not respond to this invitation. I am, however, satisfied that the Applicant has had an opportunity to make representations on the proposed striking out under rule 8(4).

Legal framework

11.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.”

12.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.

13.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.”

14.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."

15.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...

”.

16.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).

17.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).

18.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.”

19.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

20.The Applicant stated in his GRC1 form that he wished the matter to be determined without an oral hearing. Accordingly, I do not consider it a proportionate use of resources to require an oral hearing to determine the strike out application. I note also that Rule 32(4) permits the Tribunal to strike out a case under Rule 8 without an oral hearing.

21.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 15 April 2026, with further responses after review on 1 May 2026 and 21 May 2026.

22.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.

23.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.

24.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.

25.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.

26.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.