First-tier Tribunal Explains Limits on Challenging Information Commissioner Decisions

NCN: [2026] UKFTT 00970 (GRC) Case Reference: FT/EA/2026/0161/GDPR First-tier Tribunal General Regulatory Chamber Information Rights Heard: on the papers in Chambers Heard on: 26 June 2026 Decision given on: 30 June 2026 Before TRIBUNAL JUDGE OLIVER Between [APPELLANT] Applicant and INFORMATION COMMISSIONER Respondent Decision: The proceedings are struck out under Rule 8(3)(c) because there is no reasonable prospect of the [APPELLANT]'s case, or part of it, succeeding. REASONS 1. These proceedings involve an application to the Tribunal under section 166(2) of the Data Protection Act 2018 (“DPA”). The [APPELLANT] asks for an order in relation to a complaint to the Information Commissioner (the “Commissioner”).

2. 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 [APPELLANT]'s case, or part of it, succeeding.

3. In his response to the application, the Commissioner submits that the application has no reasonable prospect of succeeding and accordingly should be struck out. The Commissioner has made a strike out application on this basis. The [APPELLANT] opposes this application.

4. The Commissioner says that the remedies sought by the [APPELLANT] are not outcomes that the Tribunal can grant under section 166 DPA because an order can only be made in relation to procedural failings.

5. 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: 166 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.

6. 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: a. 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 ." b. 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 ...”. c. 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). d. 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.

7. The [APPELLANT] made a complaint to the Commissioner about how Barclays Bank Plc responded to a subject access request and handled personal data. The Commissioner investigated the matter. The case officer sent an outcome on 27 March 2026, which said the Commissioner had decided not to look into the matter in more detail. A reviewing officer issued a reviewed outcome on 14 April 2026 and confirmed this approach. The [APPELLANT]’s MP asked for the complaint to be investigated further. On 7 May 2026 the Commissioner replied explaining the outcome and why it would not be investigated further. On 3 June 2026 a revised outcome was issued, after the complaint was escalated to a manager, and after the [APPELLANT] had made this application to the Tribunal. This upheld the original outcome and explained the reasons for this decision with specific reference to the list of data protection breaches in the [APPELLANT]’s complaint.

8. The [APPELLANT] says that he is not asking the Tribunal to direct the Commissioner to investigate any particular category or to reach any particular conclusion, and that he asks only that the Commissioner engage with the complaint as submitted before exercising the discretion not to investigate.

9. The [APPELLANT] submitted a detailed 15-page response to the strike out application, which I have read and considered. The [APPELLANT] says that the Commissioner admits his original response did not explain reasons, and he contests the adequacy of the subsequent remediation in the correspondence of 3 June 2026 as follows: a. it applies an extra-statutory motivation test that has no basis in the UK GDPR or DPA 2018; b. it applies the criminal standard under Section 173 DPA 2018 to a regulatory complaint about data integrity principles, where the events predated the DSAR and Section 173 is inapplicable on its face; c. it dismisses a complaint category for “no evidence” without having requested the evidence that was offered; d. it identifies the correct investigative methodology for the Celonis complaint and confirms that this methodology was not followed; e. it was produced for litigation, not through the Commissioner’s complaints process, six months after the original complaint and five days before the Rule 23 deadline; and f. it reproduces the same reductive characterisation of the complaint that produced the admitted failure.

10. I have considered all of these points. However, I find that these are not procedural issues that fall within the Tribunal’s powers. The letter of 3 June 2026 may have been sent after the application had been made, but it still forms part of the Commissioner’s overall handling of the complaint. The [APPELLANT] accepts that this letter covers all of the main points that he made in his complaint. The representations made by the [APPELLANT] disagree with the Commissioner’s application of the law and decision not to ask for more evidence or investigate further. These are challenges to the merits of the outcome, and an attempt to use section 166 as a “back door” to reopening those merits. This is not a case where the Commissioner has failed to deal with part of a complaint altogether, as described in Smith v Information Commissioner.

11. The [APPELLANT] says he is asking the Tribunal to assess whether the Commissioner engaged with the complaint as submitted. I am satisfied that the Commissioner did do so, as explained in the letter of 3 June 2026. The [APPELLANT] may not be happy with how the Commissioner analysed the matters he was complaining about, or the Commissioner’s decision not to carry out a detailed investigation. However, these are matters for the Commissioner’s discretion, as is made clear in the caselaw set out above.

12. The [APPELLANT] is challenging the substantive outcome of the complaint to the Commissioner. The Tribunal does not have power under section 166 to consider the merits or substantive outcome of a complaint.

13. 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 Oliver Date: 29 June 2026