Case Reference: FT/EA/2026/0107/GDPR
Information Rights
Heard: on the papers in Chambers
Before
TRIBUNAL JUDGE HAZEL OLIVER
Between
CRAIG ALFRED
Applicant
and
INFORMATION COMMISSIONER
Respondent
Decision:
The proceedings are struck out under Rule 8(3)(c) because there is no reasonable prospect of the Applicant's case, or part of it, succeeding.
REASONS
These proceedings involve an application to the Tribunal under section 166(2) of the Data Protection Act 2018 (“DPA”). The Applicant asks for an order in relation to a complaint to the Information Commissioner (the “Commissioner”).
Under Rule 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, the Tribunal may strike out the whole or part of the proceedings if the Tribunal considers there is no reasonable prospect of the applicant's case, or part of it, succeeding.
In his response to the application, the Commissioner submits that the Tribunal has no jurisdiction to consider the application and/or it has no reasonable prospect of succeeding and accordingly should be struck out. The Commissioner has made a strike out application on this basis. The Applicant opposes the strike out.
Section 165 DPA sets out the right of data subjects to complain to the Commissioner about infringement of their rights under the data protection legislation. Under section 166 DPA 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 -
fails to take appropriate steps to respond to the complaint,
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
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.
The Tribunal may, on an application by the data subject, make an order requiring the Commissioner -
to take appropriate steps to respond to the complaint, or
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. Some key decisions are:
Killock v Information Commissioner [2022] 1 WLR 2241, Upper Tribunal at paragraph 74 - "…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 Upper Tribunal decision in Smith v Information Commissioner [2025] UKUT 74 (AAC), which says that Mostyn J in Delo was not saying that, just because the Commissioner has provided an outcome, there is no scope at all for a section 166 application. The decision goes on to say that the authorities all hold that it is for the Tribunal to decide if an appropriate step has been omitted, but “…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.” (paragraph 60). The decision goes on to give an example of where this would be appropriate, which is where the Commissioner’s outcome only deals with part of a complaint and fails to deal with another part of the complaint as a result of oversight or other mistake.
The Applicant made a complaint to the Commissioner on 7 December 2025 about the response to a subject access request made to a school on behalf of his child. The Commissioner provided an outcome to the Applicant in response to his complaint on 10 March 2026. The outcome letter said that the school had complied with their data protection obligations and gave reasons for this decision. The Applicant requested a review on 10 March and the review upheld the original outcome on 23 March 2026.
The Applicant says that he is making the application because the Commissioner failed to properly investigate his complaint and misapplied the law. His desired outcome from the application to the Tribunal is that the Commissioner be required to:
“Reconsider my complaint afresh and apply the correct legal tests under Article 15 UK GDPR and the Data Protection Act 2018 in relation to the Subject Access Request made on behalf of my child.
Assess whether the school lawfully refused access to my child’s personal data and whether any exemption relied upon under the Data Protection Act 2018 has been correctly applied, including whether any restriction of access is necessary and proportionate.
Consider the fact that the Subject Access Request was submitted with the agreement of both parents who hold parental responsibility, and whether the school was entitled to refuse the request on the basis stated. Inform me in writing of the outcome of that reconsideration”.
The Commissioner’s strike-out application says that the remedies sought by the Applicant are not outcomes that the Tribunal can grant under section 166 DPA because an order can only be made in relation to procedural failings. The Commissioner says that this is an attempt to bring a substantive application “by the back door”, as warned against in Smith. An outcome has been provided, the Applicant is asking the Tribunal to revisit matters that the outcome has addressed, and the narrow circumstances in Smith do not apply. The Commissioner has looked into matters in full and has a broad discretion as the expert regulator when deciding the extent of the investigation and outcome.
The Applicant provided a response to the strike-out application on 15 April 2026. The Applicant maintains that the application concerns whether the Commissioner has failed to take appropriate steps, and is not challenging the substantive outcome. The Applicant says that the Commissioner failed to take appropriate steps by: (a) failing to identify or assess any statutory exemption, (b) accepting a non-statutory rationale for refusal, (c) failing to consider partial disclosure, and (d) failing to take into account relevant considerations.
The Applicant says he is not challenging the correctness of the Commissioner’s conclusion, but whether the Commissioner identified and applied the correct legal framework in reaching that conclusion. He says that, “the failure to consider whether a statutory exemption was engaged, and whether partial disclosure was possible, constitutes a failure to take a fundamental investigative step”.
I have considered the Applicant’s representations. However, I find that he is not challenging the procedure followed by the Commissioner as required by section 166. He disagrees with the Commissioner’s application of the law and analysis of the situation. This is a challenge to the Commissioner’s conclusions. The Commissioner did investigate matters with the school and provided a reasoned outcome. The Commissioner did not fail to investigate the Applicant’s complaint. It is not similar to the situation described in Smith, where part of a complaint has not been investigated at all. It is an attempt to reopen the substantive outcome through the “back door”. I understand that the Applicant does not agree with the Commissioner’s analysis of the complaint and what the Commissioner chose to take into account, but these are matters within the Commissioner’s discretion as expert regulator. They are not matters that this Tribunal can reopen.
The Applicant is challenging the substantive outcome of the complaint to the Commissioner, and the Tribunal does not have power under section 166 to consider the merits or substantive outcome of a complaint. Section 166 is limited to procedural issues.
I therefore find that there is no reasonable prospect of the case, or any part of it, succeeding. The proceedings are struck out.
Signed: Judge Hazel Oliver
Date: 14 May 2026