Understanding Tribunal Powers: Why You Can't Appeal the Substance of an ICO Complaint Decision

Neutral citation number: [2026] UKFTT 00964 (GRC) Case Reference: FT/EA/2026/0195/GDPR First-tier Tribunal (General Regulatory Chamber) Information Rights Decided without a hearing Decision given on: 29 June 2026 Before JUDGE HARRIS Between [APPELLANT] Applicant and THE INFORMATION COMMISSIONER Respondent Decision: The Application is struck out under Rule 8(2)(a) because the Tribunal does not have jurisdiction to deal with it and under Rule 8(3)(c) because there is no reasonable prospect of it succeeding. REASONS Background to the Appeal 1. 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 Medigold Health Consultancy Limited (“Medigold”) regarding a request it made for the Applicant’s personal data.

2. The complaint was submitted to the Information Commissioner (“IC”) on 2 January 2026 and was dealt with under reference IC-463200-M3Y0.

3. On 16 April 2026, the IC’s case officer wrote to the Applicant to inform him that this was not a matter the IC intended to consider further. He stated that there was no evidence that Medigold had inappropriately processed the Applicant’s personal data and that the IC can only consider the matter as it related to the Applicant’s data rights. The case officer said there was no objection in the data protection legislation to Medigold requesting the Applicant’s personal data but that the Applicant is not required to provide this. The case officer expressed the view that the IC was satisfied that Medigold did have a legitimate interest in requesting the information.

4. The Applicant requested a case review on 28 April 2026 and the IC’s case officer acknowledged this on 8 May 2026.

5. On 14 May 2026, the IC’s reviewing officer wrote to the Applicant stating that he was satisfied the original case officer dealt with the complaint appropriately and in line with the IC’s case handling procedures. He stated the IC’s view that as the regulator for data protection law, the information provided by the Applicant does not demonstrate that an offence under section 184 of the DPA 2018 had occurred. He also stated his view that further investigation into an Appropriate Policy Document was not appropriate because, among other reasons, it does not appear that the Applicant raised this with Medigold. The reviewing officer stated that the IC would not consider the complaint further and advised the Applicant of his right to take court action against a data controller and/or complain to the Parliamentary and Health Service Ombudsman. The Appeal 6. The Applicant lodged an appeal with the Tribunal by way of form GRC1 dated 19 May 2026. He stated that the outcome he was seeking included for the Tribunal to a. quash the IC’s decisions dated 16 April 2026 and 14 May 2026; b. Remit the matter to the ICO for proper investigation of Section 184 (1) and (2) DPA 2018 breach and other breaches concerning whether Medigold had an Appropriate Policy Document (APD); and c. Declare that the IC’s interpretation of section 184 DPA 2018 is incorrect.

7. In his grounds for the appeal, the Applicant in summary identified the following issues: a. That the IC had misinterpreted section 184; b. That the IC’s decision not to investigate was inconsistent with the IC’s published guidance; c. The IC’s response to the complaint failed to address whether Medigold had an APD; d. The IC was wrong to conclude that Medigold had a legitimate interest in requesting the Applicant’s personal data.

8. The Tribunal accepted the Appeal as an application under section 166 of DPA 2018 because there was no formal assessment, enforcement, penalty or other notice which gave rise to a right of appeal under section 162 of the DPA 2018 The strike-out application 9. The IC applied by way of form GRC5 dated 17 June 2026 to strike out the Appeal 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”).

10. The reasons which the IC gave for striking out the application were set out in its Response, particularly at paragraphs 32 to 35. In summary, these were as follows: a. The IC has taken appropriate steps to investigate and respond to the Applicant’s complaint and has provided an outcome to him. Accordingly, it is respectfully submitted that the IC has complied with the procedural requirements set out in section 166(1) of the DPA18, and there is therefore no basis for the Tribunal to make an order under section 166(2) DPA18. b. It is clear that the Applicant disagrees with the outcome provided on their complaint. However, section 166 DPA18 does not provide a mechanism by which complainants can challenge the substantive outcome of a complaint.  The relief available from the Tribunal on an application under section 166 DPA18 only applies where it is satisfied that the IC has failed in some procedural respect to comply with the requirements of section 166(1) DPA18, limited solely to those orders that are set out in section 166(2) . c. If the Applicant wishes to seek an order of compliance against the data controller for any alleged breach of their data protection rights, the correct route for them to do so is by way of separate civil proceedings in the County Court or High Court under section 167 of the DPA18.

11. The Applicant made submissions dated 23 June 2026 dealing with both the substantive Response and the strike-out application, so I am satisfied that the Appellant has had an opportunity to make representations on the proposed striking out under rule 8(4). The points made by the Appellant, in summary, were as follows: a. The Applicant states they were not making a section 166 application, but appealing the IC’s final decisions dated 16 April 2026 and, after review, 14 May 2026. The Applicant accepts that the IC did reach a final outcome and they are not seeking to progress the investigation but to appeal that outcome. b. The IC had focused only on section 184(1) and not also taken into account section 184(2). The IC failed to apply its IC’s published guidance as the outcome reached by the IC was inconsistent with it. c. By asking the Applicant for his personal data, Medigold had “ engineered an indirect subject access request ”, the strategy section 184 was enacted to prevent. d. The IC’s conclusion was inconsistent with an earlier assessment by another data controller and creates a dangerous precedent. e. The Legal framework 12. Section 162(1) of the DPA provides as follows: “A person who is given any of the following notices may appeal to the Tribunal— (a)an information notice; (b)an assessment notice; (ba)an interview notice;] (c)an enforcement notice; (d)a penalty notice; (e)a penalty variation notice.” 13. The requirements for each of these formal notices are set out in paragraphs 142 to 159 inclusive of the DPA 2018.

14. 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.” 15. 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.

16. 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. ” 17. 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."

18. 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... ”.

19. 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).

20. 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).

21. 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.” I n 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.” 22. 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.” Discussion and conclusions 23. I have decided to deal with this matter without a hearing, despite the fact that the Applicant stated in his GRC1 that they wished the matter to be dealt with at a hearing and reiterated in their submissions dated 23 June that this was the case. The reasons given in their submissions dated 23 June 2026 for seeking an oral hearing were that this case involves disputed facts about a number of factual issues underlying the complaint and they considered that this requires oral evidence from the Applicant, cross-examination of the IC’s legal position and presentation of documentary evidence.

24. The reason why I have done so is that the issue I need to determine at this stage is a straightforward one, namely whether the Tribunal has jurisdiction to hear the Applicant’s Application. This turns only on the legal construction of sections 162 and section 166 of the DPA 2018. The Applicant has already filed extensive written submissions and documentary evidence addressing the Tribunal on these points, including most recently on 23 June 2026. I am not persuaded that additional oral evidence from the Applicant is required in order fairly to determine the issue of jurisdiction, or indeed would add anything substantive to the issues already ventilated. The IC has not at this stage provided any witness evidence, so cross-examination would be inappropriate. I have taken into account the overriding objective, particularly dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; avoiding unnecessary formality and seeking flexibility in the proceedings; ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; and using any special expertise of the Tribunal effectively. While I recognise that the fair determination of this case is very important to the Applicant, I do not consider it a proportionate use of resources to require an oral hearing to determine the issue of jurisdiction. I note also that Rule 32(4) permits the Tribunal to strike out a case under Rule 8 without an oral hearing.

25. Dealing first with whether the Applicant has the right to appeal under section 162 of the DPA 2018, it is clear to me as a matter of fact that no formal notice giving rise to such a right has been issued by the IC in this case. The “notices” the Applicant seeks to appeal are in fact letters dated 16 April and 14 May 2026 communicating the IC’s outcome and review outcome to its handling of the Applicant’s complaint. These do not give rise to a right of appeal under section 162, so insofar as the Applicant’s Application purports to be such an appeal, it is invalid and the Tribunal therefore has no jurisdiction to deal with it.

26. I then turn to whether there is jurisdiction in relation to an application under section 166 . I note that the Applicant explains in his submissions dated 23 June that he did not intend his Application in fact to be an application under section 166 . He also states that the IC has provided a final outcome to his complaint and it is this outcome he seeks to appeal.

27. I am satisfied that when taken together the responses dated 16 April 2026 and 14 May 2026 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.

28. 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.

29. The outcome sought by the Applicant expressly challenges 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. It cannot quash the IC’s outcome. Nor is the application of section 184 a mater that falls within the narrow procedural ambit of section 166 . 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.

30. 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.

31. 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)(c) because there is no reasonable prospect of them succeeding. Signed: Judge Harris Date: 26 June 2026