Claire May 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 regarding a data subject access request (“DSAR”) made to her former employer, Longwood School and Nursery Ltd (“LSNL”) on 11 December 2024. The complaint was submitted to the Information Commissioner (“IC”) on 21 January 2025 and was dealt with under reference IC-359732-Q1S8.

On 17 October 2025, upon application by the IC, Registrar Bamawo ordered that the proceedings should be struck out under rule 8(3)(c) as having no reasonable prospect of succeeding (the “Decision”). The reason given was that an outcome to the complaint had been provided, so the Tribunal has no further power to make an order under section 166(2) of the DPA 2018.

The Applicant made an application by way of form GRC 5 dated 22 October 2025 (the “reconsideration application”) for the Decision to be reconsidered afresh by a judge under Rule 4(3). The reasons given for the application were that the Registrar failed to address the Applicant’s submissions in response to the application and that the IC failed to take appropriate steps to respond to her complaint, because she says it should have asked the data controller to provide evidence of the data having been provided.

I have accordingly considered this matter afresh. In doing so, I have reviewed the Applicant’s form GRC3, the IC’s Response and strike-out application, the Decision and the Applicant’s reconsideration application

On 21 January 2025, the Applicant made a complaint to the IC regarding a DSAR made to her former employer LSNL on 11 December 2024. The request had been for a copy of personal data held about the Applicant relevant to the disciplinary action that LSNL was taking against her. The Applicant complained that LSNL had failed to provide her with the information she had requested. The IC acknowledged the complaint on 17 June 2025.

Having made enquiries with LNSL, on 10 July 2025, the IC’s case officer wrote to the Applicant. The case officer explained that LNSL had stated that the information it held within the scope of the Applicant’s request had been sent to her personal email address. LSNL had received no error messages to suggest that the email had not been delivered, and the case officer therefore considered that LSNL had complied with its data protection obligations.

The Applicant asked the IC to review this response to her complaint as she was not satisfied with it.

The IC’s reviewing officer responded on 12 August 2025 upholding the decision of the case officer outlining that there was no evidence that LSNL had not met their data protection obligations. The reviewing officer noted that LSNL had said that it had responded to the DSAR on 11 January 2025. In response to concerns the Applicant had raised, LSNL wrote to her again on 14 January 2025 to request clarification of which records she needed, noting that all personal data had already been provided to her by email and were accessible via her laptop’s digital folders which she had access to until 27 January 2025.

The Applicant applied to the Tribunal by way of form GRC3 dated 2 August 2025. She stated that the outcome she was seeking was as follows:  “I want the ICO or the tribunal to order the third party (ie Longwood School and Nursery ltd) to provide me with a copy of all of my personal data that it holds.”

In her grounds for the Application, the Applicant stated: “The ICO has accepted the word of the data controller over my word for no good reason. I told the ICO that I have been provided with none of my data. The controller said they sent it without sending the ICO a copy, which should be easy if they already sent it, and without giving any details of when they allege they sent it. The ICO has failed in its duty to investigate.”

The IC applied by way of form GRC5 dated 8 September 2025 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”).

The reasons which the IC gave for striking out the application were set out in its Response. In summary, these were as follows:

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.”

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 first question is whether the IC provided an outcome to the Applicant’s complaint. The IC provided the Applicant with a response to her complaint on 10 July 2025 with a further response on 12 August 2025 following a review. I consider that the response dated 10 July 2025 was in fact an outcome to the complaint, because the IC has no power to compel compliance by LSNL and it took the steps which it considered to be appropriate to resolve the matter at that time.  

Even if I am wrong on this, I am satisfied that when taken together with the response dated 12 August 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. The IC has no power to compel compliance, nor does the Tribunal have power to do so under section 166(2). 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 outcome sought by the Applicant in the Application is disclosure by LSNL of the personal data it holds about her. The Tribunal has no power under section 166 to direct LSNL to make disclosure to the Applicant. Its powers are limited to ordering the IC to progress its handling of the Applicant’s complaint. 

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.

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.

I therefore agree with the Decision of Registrar Bamawo dated 17 October 2025 to strike out the Application under Rule 8(3)(a) because there is no reasonable prospect of them succeeding. However, because I consider that under rule 8(2)(a) the matter should also be struck out for want of jurisdiction, I have set aside the Decision and remade the decision to strike out the Applicant’s Application on both the applicable grounds.

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.