Andrey Khadyka v The Information Commissioner

These proceedings concern an application under section 166(2) of the Data Protection Act 2018 (“DPA 2018”) for an order to progress the Applicant’s data handling complaint dated 13 October 2024 (the “Complaint”), reference IC-264625-B2L4) concerning a request for erasure of their personal data made to McKenzie Friend Law Support Limited (“MFLS”).

On 13 October 2023, the Applicant wrote to the Respondent. His letter stated that “1 year ago I have already complained to the ICO about [MFLS] refusing to delete my personal information. (Case reference IC-163257-D0Z9). However the ICO did not uphold my complaint because we were in legal dispute with [director of MFLS]. 9 May 2022 his claim has been dismissed and 14/09/23 I emailed him again asking to delete my personal information. He did not respond and 26/09/2023 I emailed him a Complaint which he ignored too. Now I have to make another complaint asking you to make him fulfil his obligations.” It appears from this that there are historic complaints concerning these parties in the context of previous legal proceedings, but this application is concerned only with the Complaint.

The Respondent wrote to the Applicant on 6 February 2024 asking for further information, which the Applicant provided the same day.

On 19 February 2024, the Respondent’s case officer wrote to the Applicant informing him that there was no evidence on record of him having made a formal request to MFLS to delete personal data and no documentation of a complaint being raised to MFLS concerning deletion of the data. The Respondent outlined the formal request process the Applicant would need to follow and the timeline for such a request.

On 23 February 2024, the Applicant wrote to the Respondent to complain about his handling of the Applicant’s data protection complaint about MFLS.

Following a review, the Respondent responded to the Applicant on 25 March 2024. He informed the Applicant of his view that the case officer had dealt with the Complaint appropriately and in line with the Respondent’s case handling procedures and service standards. Accordingly, he advised the Applicant that he would take no further action.

The Applicant applied to the Tribunal by way of form T98 dated 23 January 2024 (the “Application”), but this appears not to have been received by the Respondent until 27 November 2024. The Application sought the following outcome: “Order to the ICO to investigate both of my Complaints. The Defendant (ICO) to pay compensation”.

On 7 January 2025, having received the Application and reviewed the Complaint afresh, the Respondent wrote to the Applicant saying the following:
“After considering the information provided we are of the view that [MFLS] have not complied with their data protection obligations. This is because they did not respond to your erasure request within the one calendar month set out in the legislation. We have now asked them to contact you directly in regards to your request for erasure, and to ensure that they address any other outstanding data protection concerns that you may have. We expect they will contact you in due course, within the next 14 calendar days. A record of how this complaint has been handled will be kept on file and will help inform our regulatory work.”

The Respondent applied by way of form GRC5 dated 13 January 2025 to strike out the Application (the “strike-out 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).

On 15 August 2025 Judge Oliver directed that the Applicant either notify the Tribunal that he wished to withdraw the Application or provide representations in response to the strike-out application within 14 days. No response has been received from the Applicant.

The only articulation of the Applicant’s case is that set out in the form T98. This states the following

“13/10/2023 I made a Complain to the ICO

21/11/2023 emailed a reminder.

14/12/2023 emailed a complaint about ICO to the ICO

I have never received any response.”

The strike-out application

The reasons given for the strike-out application at paragraphs 35-38 of the Response dated 13 January 2025 are as follows:

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

(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 -

a.

to take appropriate steps to respond to the complaint, or

b.

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 first response which the Respondent provided to the Appellant on 19 February 2024 with a follow up review on 25 March 2024 appears to have been superseded by later events. However, the Respondent provided the Applicant with a further response to the Complaint on 7 January 2025 following issue of the Application

I am satisfied that this later response both provided an outcome to the complaint 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. It appears to me therefore that there were no further appropriate steps which the IC ought reasonably to have taken 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 were no further appropriate steps he should have taken.

The Tribunal’s power to order progression of a complaint under section 166 is limited to ordering the Respondent to take appropriate steps to respond to a complaint, or to inform the complainant of progress or an outcome within a specified period. Once that investigation has been concluded and an outcome provided, it follows that there is no longer an investigation in respect of which an order to progress can be made under section 166(2). 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.

The Tribunal has no power to award compensation to the Applicant. I also find that the Respondent was correct that any order for compliance under section 167 DPA must be pursued through the civil courts, not through this Tribunal.

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 remedy 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.