Суды Англии и Уэльса: жалоба на бездействие Уполномоченного по информации в связи с нарушением персональных 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 complaint against Marsh Wall Limited (“MWL”) regarding alleged personal data breaches, failures in identity verification procedures, and issues relating to the accuracy, lawfulness, and processing of the Applicant’s personal data. The complaint was submitted to the Information Commissioner (“IC”) on 14 April 2026 and was dealt with under reference IC-502636-T8X7.

2.On 3 June 2026, the IC wrote to the Applicant informing him that having considered all the information provided and in line with the IC’s Data Protection Framework, the IC had decided not to undertake a more detailed investigation. The IC explained that he understood the Applicant’s concern about information being withheld or redacted in relation to his subject access request. However, the IC had not identified factors such as significant harm, wider impact or a broader data protection concern that would justify further investigation. The Applicant was informed that his complaint would, however, be kept on record to support the IC’s regulatory work. The IC informed the Applicant that he could ask for a review and/or that he had the right to take proceedings to court. The Applicant did not seek a review, and issued the Application instead.

3.The IC accepts that its response dated 3 June 2026 did not fully explain the reasons why he was taking no further action in respect of the Applicant’s complaint. However, the IC’s Public Advice Data Protection Complaints Services Team wrote to the Applicant on 29 June 2026 and confirmed that, having carefully reviewed all the information provided, the decision remained the same. It summarised the specific concerns raised by the Applicant and explained the limits of the IC’s role. It explained that the IC does not investigate every complaint in detail and prioritises matters where there is evidence of systemic risk, significant ongoing harm or where regulatory intervention is likely to achieve a meaningful outcome. It explained that the IC is not a court or ombudsman and cannot adjudicate on liability, determine whether a contract is valid or resolve disputes about whether a particular transaction was authorised, as these are matters more appropriately considered by the courts. In relation to the Applicant’s SAR, the IC explained that the information provided indicated that the data controller has responded and engaged with the Applicant, including providing disclosures, explaining the searches undertaken and applying exemptions where appropriate. It noted that there will be circumstances where organisations are entitled to withhold information. In relation to disclosure of third-party personal data, the data controller had taken steps to address this and the IC considered that the information available did not indicate a level or risk or wider impact that would warrant further regulatory action at that stage. The IC concluded that he had not identified sufficient grounds for further investigation or enforcement action but would record the Applicant’s complaint. It advised the Applicant of his right to take action through the courts and/or complain to the Parliamentary and Health Service Ombudsman (PHSO).

The Application

4.The Applicant applied to the Tribunal by way of form GRC3 dated 19 June 2026. He stated that the outcome he was seeking was as follows:

“

I request that the Tribunal make an order requiring the Information Commissioner to: take appropriate steps to properly consider the substance of my complaint under

section 165 of the Data Protection Act 2018

; and provide a further response that addresses the issues raised in my complaint, including data breaches, identity verification failures, missing KYC documentation, data accuracy concerns, and the resulting financial harm provide a further response that addresses the issues raised in my complaint, including data breaches, identity verification failures, missing KYC documentation, data accuracy concerns, and the resulting financial harm within a specified time period determined by the Tribunal

.”

5.In his grounds for the Application, the Applicant stated that the IC had failed to take appropriate steps to respond to his complaint as required under

section 165 of the DPA 2018. He argued that the IC’s response dated 3 June 2026 appears to have treated the matter as a routine Subject Access Request (SAR) issue concerning withheld or redacted information. He said this was a mischaracterisation of the complaint submitted which had raised multiple and distinct data protection concerns and that the IC did not engage with those issues and explain how they were considered or addressed. Accordingly, he argued that the IC had not taken appropriate steps to properly consider or respond to his complaint. His Application was a request that the ICO be required to properly discharge its statutory function by addressing the substance of the complaint in a reasoned and adequate manner.

The strike-out application

6.The IC applied by way of form GRC5 dated 22 July 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”).

7.The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 16 to 18. In summary, these were as follows:

a.

The IC accepts that his initial response to the Applicant’s complaint did not explain the reasons why the IC was taking no further action in respect of the Applicant’s complaint. However, the IC has since provided the Applicant with reasons for his decision in further correspondence dated 29 June 2026 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.

8.I directed that the Applicant should provide representations in relation to the strike out application by 25 August 2026 under Rule 8(4)

9.The Applicant provided a response to the strike out application 1 day late, on 26 August 2026, so I am satisfied that the Applicant has had an opportunity to make representations on the proposed striking out under rule 8(4). The points made by the Applicant, in summary, were as follows:

a.

The Application concerns whether or not the IC took appropriate steps in response to the Applicant’s complaint.

b.

The IC focused in its response dated 3 June 2026 on information being withheld or redacted in an SAR response, but that was only one aspect of a much broader complaint raising multiple and distinct data protection concerns. The Applicant considers that this response did not address those matters in any meaningful or reasoned way.

c.

Admitted data breaches, data verification issues, missing verification and authority documents and data accuracy and integrity were not addressed in the response dated 3 June, nor did it explain how these aspects had been assessed.

d.

The Applicant gave details of significant harm which had arisen for him personally and said that the IC’s response does not explain how those factors were assessed when concluding that significant harm or wider concerns had not been identified.

e.

He considers that there is a clear and arguable case that the IC did not address key issues in the complaint, engage with material evidence or address the harm which was occurring to the Applicant. He therefore argues that the IC failed to take appropriate steps, so there is a reasonable prospect of his Application succeeding. He contends that it is within the Tribunal’s jurisdiction to determine whether the IC properly discharged the obligation to take appropriate steps to respond to the complaint.

Legal framework

10.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.”

11.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.

12.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.”

13.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."

14.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...

”.

15.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).

16.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).

17.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.”

18.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

19.I have decided to deal with this matter without a hearing, in accordance with the Applicant’s wishes set out in in his GRC3 form. 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.

20.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 3 June 2026 and a further response on 29 June 2026, after the Applicant had lodged the Application.

21.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) notwithstanding the fact that it did not respond individually to each of the points raised by the Applicant. The fact that the Applicant does not agree with the outcome does not render it wrong in law.

22.Having found that there is an outcome, the authorities of Cortes and Smith referred to in paragraphs 16 and 17 above are relevant. Relying on these, I am not persuaded that this is an instance where the IC ought to be ordered to take further appropriate steps after the outcome has been provided. It is open to the Applicant to pursue any challenge to the adequacy of the investigation and assessment of his complaints by way of judicial review.

23.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. Accordingly, I find that the Tribunal does not have the power to grant the outcomes sought in this case.

24.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.

25.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.