Ian David Spencer v Information Commissioner

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 handling of a Subject Access Request (“SAR”) by Tower House Surgery (“THS”), which was submitted to the Respondent on 24 January 2024 (Reference IC-284522-V3R5).

On 8 May 2024, the Respondent’s case officer contacted the Applicant to inform him that it was unclear from the evidence provided whether a SAR was made to THS and requested further information. The Applicant provided further information by a letter dated 22 May 2024.

On 6 June 2025, the case officer contacted THS and requested the contact details of the person who was in a position to deal with the complaint. THS responded the same day and the Respondent wrote to THS asking for further details about the Applicant’s complaint concerning his SAR. THS responded on 21 June 2024 and provided a detailed chronology as to the handling of his SAR and access to medical notes. The case officer subsequently clarified with THS that the Applicant has requested hard copies of his notes.

On 18 July 2024, the Respondent’s case officer wrote to the Applicant to confirm that THS would be providing hard copies of the medical records requested, although it also noted that because the Applicant had not provided proof of delivery of the letter sent to THS, it was difficult to determine whether or not THS had breached its data protection obligations. The Applicant provided further evidence on 2 August 2024.

On 19 August 2024, the Respondent’s case officer responded to the Applicant and reiterated that THS had been instructed to provide him with his medical notes in a hard copy format and provided further explanations concerning the next steps the Applicant could take if dissatisfied. The Respondent then closed its complaint.

Between 2 September 2024 and 19 November 2024, the Applicant sent further correspondence to the Respondent. The Respondent’s case officer acknowledged this on 20 November 2024 and noted that many of the concerns related to the NHS app with which the Respondent was unable to assist. The Respondent reiterated that the complaint was closed.

The Applicant made the Application to the Tribunal by way of form GRC1 on 5 December 2024 seeking an order that the Tribunal “allow the appeal and substitute a notice that orders the public authority to take steps in relation to the request for information. (Not just for me but for everyone)”. This appears to be seeking an order to compel THS to provide the information and in the reasons for the Application the Applicant stated “Well, it is the organisation (Tower House Surgery) that is the problem. I am unable to move on to another Surgery as there will be negative information from Tower House Surgery that will go with me!”

The Application was treated by the Tribunal as being an application for an order to progress the Respondent’s investigation into the Applicant’s complaint.

The Respondent applied by way of form GRC5 dated 6 May 2025 to strike out the Application on the basis that the order sought was not one which the Tribunal has the power to grant under section 166 and also on the basis that he had now taken steps to comply with the procedural requirements set out in section 166(1) of the DPA 2018 and there therefore no basis for the Tribunal to make an order under section 166(2). The Respondent invited the Tribunal to strike out the Application because it did not have jurisdiction to deal with it under Rule 8(2)(a) and/or there was no reasonable prospect of the proceedings succeeding under Rule 8(3)(c). He also pointed out that if the Applicant wishes to seek an order of compliance against THS the correct route to do so is through civil proceedings under section 167 of DPA 2018.

The Tribunal directed on 8 July 2025 that the Applicant should provide any representations in relation to the application to strike out the proceedings by 25 July 2025.

On 10 July 2025, the Applicant wrote to the Tribunal enclosing a copy of his response to the strike out application dated 15 May 2025. He gave the following reasons:

Section 165 DPA 2018 sets out the right of data subjects to complain to the Information Commissioner (here the Respondent) 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

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.”

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.

The case of Killock v Information Commissioner [2022] 1 WLR 2241, 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."

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...”.

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).

The decision of the Upper Tribunal in Cortes v Information Commissioner (UA-2023-001298-GDPA) which applied both Killock and Delo in confirming 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).

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.” In 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.”

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.”

The Respondent provided the Applicant with a response to his complaint on 18 July 2024 in which he found that THS had more work to do and he had contacted THS to ask them to provide a copy of the Applicant’s medical notes in hard copy format. I consider that this was an outcome to the Applicant’s complaint. This was followed up by a further letter on 19 August 2024 which reiterated the previous response and stated that “It is not the ICO’s role to resolve matters on behalf of individuals, rather to provide a view as to whether an organisation is likely or unlikely to have complied with the data protection legislation.” This letter advised that the complaint was now closed. Even if I am wrong about the earlier letter being an outcome in itself, I am satisfied that when taken together the responses dated 18 July and 19 August 2024 both provided an outcome to the complaint and demonstrated that the Respondent had given consideration to whether there were other appropriate steps which could be taken to progress the Applicant’s complaint. It appears to me therefore that there were no further appropriate steps which the Respondent ought reasonably to have taken to progress the complaint.  In making this decision I have given significant weight to the view of the Respondent as the expert regulator that there were no further appropriate steps he should have taken. Accordingly it follows that the Respondent’s handling of the Applicant’s complaint has been concluded because an outcome has been issued and there are no further appropriate steps to be taken.

The Applicant’s other points appear to be concerned with the fact that he remains dissatisfied with the response he has received from THS. The Tribunal does not have the power under section 166 to compel a public authority, here THS, to comply with a request for information. As stated in paragraph 47 of the Respondent’s Response dated 6 May 2025, the appropriate route to seek such an order is through the civil courts under section 167 of DPA 2018, not through this Tribunal. The Tribunal’s power under section 166 is limited to making an order for the Respondent to progress its handling of the complaint.

I therefore find an outcome was provided to the Applicant’s complaint which means that the Tribunal has no jurisdiction to reopen the complaint or to order that it be reinvestigated or investigated in a particular way. 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.  

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)(a) because there is no reasonable prospect of them succeeding.