NCN: [2026] UKFTT 00006 (GRC)
Case Reference: FT/EA/2025/0280
First-tier Tribunal
(General Regulatory Chamber)
Information Rights
Decided without a hearing
Decision given on: 6 January 2025
Before
TRIBUNAL JUDGE PERI MORNINGTON
Between
DAVID KING
Applicant
and
THE INFORMATION COMMISSIONER
Respondent
Decision: The application is struck out under Rule 8(3)(c) of The Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009 because there is no reasonable prospect of the Applicant’s case, or part of it, succeeding.
REASONS
Introduction
On 31 July 2025, the Applicant made an application to the Tribunal seeking an order under section 166(2) of the Data Protection Act 2018 (DPA 2018) to take appropriate steps to respond to their complaint concerning Royal Mail.
In his response to the application, the Commissioner invites the Tribunal to strike out the appellant’s appeal on the basis that the Tribunal does not have jurisdiction to consider the appeal and/or that the appeal has no reasonable prospects of succeeding and accordingly, should be struck out. The Commissioner avers that an outcome has been provided to the Applicant on 24 June 2025 and a review outcome on 1 July 2025. The Commissioner submits that the Tribunal does not have the power to grant the remedies sought by the Applicant under s166 DPA 2018.
Legal Framework
Under Rule 8(2)(a) 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 it does not have jurisdiction in relation to the proceedings or that part of them; and does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.
Under Rule 8(3)(c) of the Rules, 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.
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
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 as prescribed by section 166(2), it does not have the power to make an order beyond the scope of s166(2), and even then, only 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:
Scranage v Information Commissioner [2020] UKUT 196 (AAC), paragraph 6
- "In my experience – both in the present appeal and in many other cases – there is a widespread misunderstanding about the reach of section 166. Contrary to many data subjects’ expectations, it does not provide a right of appeal against the substantive outcome of the Information Commissioner’s investigation on its merits. Thus, section 166(1), which sets out the circumstances in which an application can be made to the Tribunal is procedural rather than substantive in its focus." (emphasis in original).
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 ."
Background
The factual background to this case is succinctly set out at [27] to [34] of the Commissioner’s response dated 10 November 2025:
On 3 November 2024, the Applicant made a complaint to the Commissioner regarding Royal Mail Group Ltd (“Royal Mail”) and the processing of his personal data [Annex 1].
The complaint was allocated case reference IC-343429-G8G7 and assigned to a Case Officer.
On 24 June 2025, following a review of the complaint and the supporting evidence, the Case Officer issued an outcome. The case officer explained to the Applicant that, based on the information available, the ICO was unable to reach a definitive conclusion regarding Royal Mail’s compliance with data protection legislation. While the flyer in uestion may constitute direct marketing under certain circumstances, there was no evidence to suggest that the Applicant was specifically targeted. Given the date of the material (2021), the ICO declined to take further action, citing its policy of prioritising current matters with broader regulatory impact. The Applicant was encouraged to seek independent legal advice and to consider opting out of future marketing communications via the Mail Preference Service [Annex 2]. (It is noted that the outcome is dated 26 June 2025 but was sent to the Applicant on 24 June 2025, therefore the correct date of the outcome is 24 June 2025).
On 25 June 2025, the Applicant requested a case review and expressed his dissatisfaction with the outcome. The Applicant also requested clarification on the wording of the Case Officer’s outcome. The request was acknowledged by the Case Officer on the same day and the Applicant was informed that his complaint would be passed to a Reviewing Officer.
On 1 July 2025, following a review of the evidence submitted and the Case Officer’s handling of the complaint, the Reviewing Officer issued an outcome. The Reviewing Officer was satisfied that the Case Officer had acted appropriately and in accordance with the ICO’s case handling procedures. It was noted that the Case Officer had provided a clear reasoning in the outcome letter, and it was reiterated that the ICO’s role as a regulator is to assess whether the available evidence indicates a breach of data protection law. In this instance, the Case Officer concluded that there was insufficient evidence to establish a breach and, given the date of the marketing correspondence, saw limited scope for regulatory involvement. Accordingly, the decision not to pursue the complaint further was 11 upheld. The Applicant was advised of his right to pursue the matter through legal proceedings or to escalate the complaint to the Parliamentary and Health Service Ombudsman. He was further advised to seek independent legal advice prior to initiating any such proceedings [Annex 3].
Between 2 and 10 July 2025, the Applicant informed the reviewing officer he had submitted an appeal to the First-Tier Tribunal as he remained dissatisfied with the complaint outcome.
Conclusions
I find that the Commissioner has provided an outcome to the complaint on 24 June 2025 and that following a request by the Applicant for an internal review, that an outcome of such review was provided on 1 July 2025. A
Contrary to the expectations of the Applicant, section 166 does not provide a right of appeal againt the scope or conduct of the Commissioner’s investigation. The Tribunal is bound to take into consideration and give weight to the views of the Commissioner, as described by the Chamber President in Barbara Rogers v ICO EA/2021/0348:
’14…In the sphere of complaints, the Commissioner has the institutional competence and is in the best position to decide what investigations he should undertake into any particular issue, and how he should conduct those investigations. This will be informed not only by the nature of the complaint itself but also by a range of other factors such as his own registry priorities, other investigations in the same subject area and his judgement on how to deploy his limited resources most effectively: Killock & Ors v Information Commissioner [2021] UKUT 299. The obligation of the Commissioner is to take appropriate steps to respond to the complaint’.
The Applicant’s application requests that the Tribunal order the Commissioner to take appropriate steps to respond to his complaint as he does not accept that the outcome provided is well founded since the Commissioner has opted to delegate his function to investigate complaints to his case officers without stipulating the level of permissions which has been granted to the officers. The Applicant states in his submissions that he is “ confident that had the Commissioner personally inveistgated his complaint against Legal and General he would have agreed with the Appellant” .
It is therefore clear that the Appellant is challenging the substantive outcome and the conduct of the Commissioner in dealing with the Applicant’s complaint. The Tribunal does not have the power under section 166 to consider the conduct of the Commissioner in investigating the complaint and the delegation to case officers, nor the substantive outcome of a complaint, nor does it have the power to make an order in the terms sought by the Applicant in finding that the investigation is unfounded because there was no attempt to apply the objective opinion of the Commissioner to the facts of the case.
Section 166 is limited to procedural issues . The Commissioner took steps to investigate and respond to the complaints pursuant to Section 165. The Commissioner provided outcomes to the complaint. For these reasons, I find that the Commissioner has not failed to comply with the procedural requirements set out in section 166(1) of the DPA and I am not permitted to make any order in the terms sought by the Applicant.
I therefore find that there is no reasonable prospect of the appeal or any part of it, succeeding. The proceedings are therefore struck out.
Signed: Judge Peri Mornington Date: 5 January 2026