When the Information Commissioner has already responded: Tribunal's powers in data protection complaints

NCN: [2026] UKFTT 00972 (GRC) Case Reference: FT/EA/2025/0478/GDPR First-tier Tribunal General Regulatory Chamber Information Rights Heard: on the papers in Chambers Heard on: 26 June 2026 Decision given on: 01 July 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 Applicant'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 Applicant 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 applicant's case, or part of it, succeeding.

3. 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.

4. The Commissioner 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.

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 Applicant lodged a complaint with the Commissioner on 26 September 2025, stating that the Commissioner had failed to take appropriate steps to progress her complaint which concerned the non-compliance by GXO Logistics UK Ltd with a Subject Access Request dated 7 July 2025. The Applicant initially made an application to the Tribunal on 30 December 2025, which was withdrawn as it was made too early. The Applicant applied for reinstatement on 16 April 2026, and the Tribunal confirmed the application had been received on 27 April.

8. The Commissioner provided an outcome to the complaint on 8 May 2026. The outcome says, “we do not appear to hold any clear evidence of an infringement of the legislation that we oversee”, and confirms that the case is now closed as there does not appear to be any scope for further regulatory action.

9. The Applicant’s response to the strike out application says that this matter concerns the Commissioner’s procedural handling of the complaint. She says that the Commissioner only sought clarification from her on 30 April 2026, and only issued the outcome on 8 May 2026. This was after the Applicant had pursued the matter before the Tribunal. The Applicant says that the fact that the Commissioner later issued an outcome after the Tribunal proceedings had been commenced does not mean that her section 166 application was wrongly brought. She says that the later outcome does not retrospectively remove the Tribunal's jurisdiction or render the application without reasonable prospect of success.

10. I do have some sympathy for the Applicant’s position. It appears that the Commissioner only addressed her complaint and provided an outcome after she had issued these proceedings. She was not wrong to make this application. However, the Tribunal’s powers under section 166 are limited to making an order to progress the complaint. The complaint has now been dealt with, and so there is no need for this order. There is no action that the Tribunal can take in relation to the fact the complaint was dealt with after a delay of more than six months.

11. 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