Bruce Chadwick v The Information Commissioner

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 the Insolvency Service (“IS”) regarding the processing of his personal data and the destruction of a file in 2007. The complaint was submitted to the Information Commissioner (“IC”) on 25 November 2024 and was dealt with under reference IC-346535-T2M1.

2. On 25 November 2025, the Applicant submitted his complaint to the IC. In particular, the Applicant complained that a file held by the IS relating to Director Disqualification proceedings brought against him was destroyed in 2007 but should have been retained for longer.

3. On 25 March 2025, the IC’s case officer advised the Applicant that the IC was unable to consider aspects of the complaint falling outside the scope of the data protection legislation. Accordingly, the investigation would be limited to establishing whether or not the retention period adhered to by the IS was appropriate, and why they had sent the Applicant a letter in February 2025 relating to a legal charge on his property. On the same date, the case officer contacted the IS and requested their comments about the complaint.

4. On 21 May 2025, having received a response from the IS to their enquiries, the case officer wrote to the Applicant. The case officer noted that the proceedings brought by the IS against the Applicant (the “main case”) concluded in 2002, and the file was deleted in 2007 in line with its retention policy to retain such documents for 5 years. In relation to the letter about the legal charge on the Applicant’s property, the IS explained that a record of the prior charge had remained on an internal spreadsheet due to human error. This resulted in the erroneous letter dated 3 February 2025 beings sent. However, the IS had contacted the Applicant to explain the error and amended its records to reflect that the charge had been paid.

5. On 22 May 2025, the Applicant informed the case officer that he disagreed with the views relating to the retention of the case files and requested a case review. This was acknowledged on 3 June 2025.

6. On 2 September 2025, the reviewing officer wrote to the Applicant and apologised for the delay in providing the outcome. The reviewing officer explained his view that the deletion of its files in 2007 relating to the legal action taken against the Applicant was in accordance with the Insolvency Service’s retention policy and it had not contravened data protection law in doing so. It was concluded that the complaint was handled appropriately and that no further action would be taken. The Application

7. The Applicant applied to the Tribunal by way of form GRC1 dated 16 October 2025. He stated that the outcome he was seeking was “ that the ICO and the Insolvency Service accept that the Insolvency Service acted illegally in destroying the file before conclusion ”.

8. In his grounds for the Application, the Applicant stated that the key factor in his complaint was that the IS chose to destroy a legal file in 2007 while it was still an open and ongoing case with costs outstanding, before the case concluded in November 2013 at which points the outstanding costs were written off and legal charge removed from his home. He said that the reviewing officer’s response dated 8 September 2025 stated that the file was destroyed in 2007 in line with the IS retention policy and that the proceedings in relation to costs were separate from the main case file. He disputes that the costs action was separate from the main case and provided evidence that they bore the same case number. The jurisdiction question

9. Judge Kiai admitted the appeal out of time by directions dated 11 November 2025, in which she directed that the Applicant should make written submissions explaining on what basis the Tribunal has jurisdiction to hear his appeal and provided for further submissions in response and reply by the parties.

10. The Applicant wrote to the Tribunal on 19 November 2025 asking that the Tribunal consider his appeal on the basis that the IC has failed to take appropriate steps to respond to his complaint about the IS. He stated that the key factor is why IS destroyed his case file before 2013 when the costs part of the case concluded and he considered that the IC had not properly answered this part of the complaint.

11. The IC responded on 9 December 2025. It made the following points: a. Section 166 is engaged only where a data subject has made a complaint under section 165 of the Act or Article 77 of the UK GDPR alleging that, in connection with personal data relating to that individual, there has been an infringement of the UK GDPR. b. In the present case, the processing about which the Applicant complains took place before 1 March 2018, the date on which the UK GDPR and the Data Protection Act 2018 came into force. At that time, the applicable legislation was the Data Protection Act 1998 . Section 166 confers no right to apply to the Tribunal in respect of alleged infringements of the 1998 Act , and the Tribunal therefore lacks jurisdiction to entertain an application predicated on such processing. c. In any event, as noted at paragraph 9 of the case management directions dated 11 November 2025, it has been clearly established that the Tribunal’s powers under section 166 of the DPA18 are concerned with remedying ongoing procedural defects in relation to the handling of a complaint (see R (on the application of Delo) v Information Commissioner and Wise Payments Ltd [2022] EWHC 3046 (Admin) , and Killock & Veale & others v Information Commissioner [2021] UKUT 299 (AAC) ). Section 166 is not concerned with the merits of the underlying complaint or intended to provide a right of challenge to the substantive outcome of the Commissioner’s investigation into that complaint. The IC enjoys wide discretion in the handling of complaints brought by data subjects under the relevant provisions. d. The IC considered the Applicant’s complaint, investigated it to the extent appropriate, and provided an outcome on 21 May 2025 followed by a review outcome on 2 September 2025. Accordingly, it is respectfully submitted that the IC has not failed to comply with the procedural requirements set out in section 166(1) of the DPA18. e. It is clear that the Applicant disagrees with the outcome reached by the IC on his complaint. However, as set out above, section 166 of the DPA18 does not provide a mechanism by which applicants can challenge the substantive outcome of a complaint. The relief available from the Tribunal on an application under section 166 of the 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) of the DPA18, limited solely to those orders that are set out in section 166(2) . There has been no such failure.

12. The IC therefore submitted that the Tribunal lacks jurisdiction to consider the Applicant’s application and must strike it out pursuant to Rule 8(2)(a) of the Tribunal Rules. In the alternative, the application has no realistic prospect of success on the grounds that the Commissioner has complied with the procedural requirements set out in section 166(1) , and the Tribunal is invited to strike it out under rule 8(3)(c) of the Tribunal Rules

13. The Applicant provided further submissions on 17 December 2025. The points made by the Applicant, in summary, were as follows: a. His complaint was on how his personal information was handled and destroyed by the IS and correct retention periods were not adhered to and the fact that, as a result, he was denied access to information which would have enabled him to defend a legal action against him. b. He has not received an answer from the IC or IS as to why the IS chose to destroy the file before conclusion of the costs part of the legal case in 2013. Accordingly he considers that the IC has not fully addressed the complaint. c. The IC overlooked the fact that IS had in error kept details of a legal charge which was out of date by 12 years and this caused distress to the Applicant, who would have been at risk of being taken to court for a debt he did not owe. d. The IC failed to take appropriate steps to respond to the complaint or update him in the time required. Legal framework

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 - d. to take appropriate steps to respond to the complaint, or e. 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 (paragraph 33). 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.”

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.” In 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. It appears to me that the data protection breaches in relation to which the Applicant complained are not ones which fall within section 165 of DPA 2018 or Article 77 of the UK GDPR alleging that, in connection with personal data relating to that individual, there has been an infringement of the UK GDPR. The breaches were in fact under the predecessor legislation, the Data Protection Act 1998 , which did not have an equivalent power. It appears to me therefore that the Tribunal does not have jurisdiction primarily for that reason. However, for completeness, I have also considered whether the Tribunal would have jurisdiction if the breaches complained of did in fact fall within the relevant legislation.

24. The first question is whether the IC provided an outcome to the Applicant’s complaint. The IC provided the Applicant with a response to his complaint on 21 May 2025 with a further response on 2 September 2025 following a review. I consider that the response dated 21 May 2025 was in fact an outcome to the complaint, because 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.

25. Even if I am wrong on this, I am satisfied that when taken together with the response dated 2 September 2025, these responses 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.

26. 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.

27. The outcome sought by the Applicant is for the IC and the IS “ accept that the Insolvency Service acted illegally in destroying the file before conclusion” . The Tribunal’s powers are limited to ordering the IC to progress its handling of the Applicant’s complaint. It cannot rule on the legality or otherwise of the underlying document retention policy.

28. The outcome sought by the Applicant is also, in effect, challenging 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. Accordingly, I find that the Tribunal does not have the power to grant the outcomes sought.

29. 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, even if the complaint was one which fell within the ambit of section 166 , which it does not. 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.

30. 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)(a) because there is no reasonable prospect of them succeeding.