Jose Marques v The 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 complaints against Riverside Housing Association (“RHA”) regarding the alleged mishandling of his personal data, unauthorised contact with Universal Credit and suspected alteration of email content. The complaint was submitted to the Information Commissioner (“IC”) on 10 September 2024 who assigned a case officer and allocated the reference IC-332100-Z6F9.

On 6 January 2025, the IC wrote to the Applicant to apologise for the delay in responding to the complaint, which was due to a high volume of complaints being received. In order to progress the complaint, the Applicant was asked to provide further correspondence with RHA, which he duly provided on 8 January 2025.

On 23 January 2025, the IC emailed the Applicant to confirm that the additional information provided was under review.

Having reviewed the evidence provided, the IC’s case officer wrote to the Applicant on 30 January 2025. The case officer concluded that Riverside Housing Association had complied with its data protection obligations and was satisfied with the justification provided for the sharing of the Applicant’s personal data with the DWP. It was explained that organisations do not always require consent to share personal information, provided they have a lawful basis for doing so. The Applicant was also signposted to RHA’s privacy policy on their website, which set out how residents’ personal information may be shared with the DWP and other organisations. The case officer advised that, in their view, there was no evidence to suggest that RHA inappropriately deleted or altered the content of any emails sent to the Applicant. Accordingly, the IC concluded that no further action was required.

On the same day, the Applicant requested an internal case review of his complaint.

On 31 January 2025, the Applicant sent the IC a judicial review pre-action protocol letter, expressing his dissatisfaction with the complaint outcome and requested a response within 14 days. On 10 February 2025, the Applicant sent a further email requesting a response to his pre- action letter within seven days. The Applicant also updated his pre-action letter to include reference to the High Court ruling in R (Roberts) v Secretary of State for Work and Pensions [2025] EWHC 51 (Admin). The Applicant advised that, should the IC not respond, he would pursue a judicial review claim.

On 11 February 2025, the case officer acknowledged the Applicant’s email and advised that the IC would provide an update upon further review of the information provided.

On 21 February 2025, the Applicant advised the case officer that he had initiated legal proceedings.

The IC’s case officer wrote to the Applicant on 25 March 2025, and apologised for the delay in providing a response to his concerns about the outcome, explaining that further research was needed. After reviewing R (Roberts) v Secretary of State for Work and Pensions [2025] EWHC 51 (Admin), the case officer concluded that the judgment was not relevant, as it concerns DWP processes for deducting payments in order to make direct payments to a landlord. In this case, the IC’s assessment remained that the data sharing was likely lawful. The Applicant was advised that the outcome would be reviewed by a lead case officer, and the Applicant would be updated once this is complete.

The Applicant responded on 26 March 2025, and stated that he is filing for a judicial review as a result of not receiving a response within seven days. As at the time of filing its Response on 6 October 2025, no judicial review claim form had been received by the IC.

On 2 April 2025, the IC’s reviewing officer wrote to the Applicant with the review outcome. He was satisfied that the case officer had handled the complaint appropriately and in accordance with the ICO’s case handling procedures. Accordingly, he advised the Applicant that the matter would not be pursued further.

The Appellant applied to the Tribunal by way of form GRC1 on 4 April 2025. He stated that the outcome he was seeking was as follows:

“I respectfully ask the Tribunal to allow this appeal and set aside the Information Commissioner’s final decision dated 2 April 2025 (Reference: IC-332100-Z6F9), which concluded that my complaint had been “dealt with appropriately” and would not be pursued further.

I am asking the Tribunal to:

a)

Find that the ICO failed to investigate my data protection complaint to an “appropriate extent” under Section 165(4) DPA 2018, particularly in relation to the lawfulness of Riverside Housing Association’s disclosure of my personal data to the DWP;

b)

Recognise that the ICO misinterpreted or failed to consider the relevance of the High Court judgment in R (Roberts) v Secretary of State for Work and Pensions [2025] EWHC 51 (Admin), which directly impacts the legal context of the data processing in question;

c)

Direct the ICO to conduct a fresh and legally robust investigation, assessing whether Riverside had a valid lawful basis for sharing my data without my knowledge or consent, and whether this breached Articles 5 and 6 of the UK GDPR;

d)

Consider any further directions it sees fit in order to protect my rights as a data subject under the UK GDPR.”

The strike-out application

The IC applied by way of form GRC5 dated 6 October 2025 to strikeout 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 (the “strike-out application”).

The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 23-26 and 43-45. In summary, these were as follows:

The Applicant provided a Reply which included a response to the strikeout application on 7 October 2025. He stated that he opposed the strike-out application on the following grounds

At paragraph 8 the Appellant states “The Appellant is not seeking to appeal the Commissioner’s internal administrative handling, but rather the final outcome of their complaint. The Respondent’s distinction between the 31 January and 2 April 2025 decisions is artificial — the substance of the decision was final in either case. “

At paragraph 10, the Appellant maintains that “The Commissioner failed to properly investigate under s.165(4) DPA 2018”.

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 -

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.

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.”

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."

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 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).

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 IC provided the Applicant with a response to his complaint on 30 January 2025, and a further response following review on 2 April 2025. I consider that the response dated 30 January 2025 was in fact an outcome to the complaint.  I consider it to be an outcome, because the IC has no power to compel compliance by RHA and it took the steps which it considered to be appropriate to resolve the matter at that time. However, even if I am wrong on this, I am satisfied that when taken together with the response dated 2 April 2025, 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.  

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.   

The Applicant’s proposed outcomes are, in effect, challenging the substantive outcome of the complaint to the IC and he confirms this to be the case at paragraph 8 of his Reply. 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 orders for compliance need to be sought through civil action. Accordingly, I find that the Tribunal does not have the power to grant the remedies sought. I note that the Applicant has advised the IC that he had commenced judicial review proceedings and this may be another route to obtaining these remedies.

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 remedies sought by the Applicant are not ones 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.