Forhad Islam v The Information Commissioner

Introduction

1. The Appellant seeks an order under section 166(2) of the Data Protection Act 2018 (DPA 2018) requiring the Information Commissioner (the Commissioner) to take appropriate steps to respond to their complaint concerning Splend Uk Ltd and Nelson/Noble Claims including: “For Splend UK Ltd

2. Obtain from Splend an itemised list of all documents/data disclosed in July 2025;

3. Verify whether insurer communications, internal liability notes, call recordings, and fee/refund rationale exist and are within scope;

4. If withheld, require Splend to identify and justify any lawful exemptions;

5. Confirm the Commissioner’s verified outcome to me in writing within a set timeframe. For Nelson/Noble Claims

6. Require an itemised disclosure of all personal data held, including internal claim notes and correspondence concerning me;

7. If any material is withheld, require specific exemption justifications;

8. Confirm a verified remedial outcome to me in writing within a set timeframe.”

9. 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.

10. The Appellant opposes the strike out and seeks an order from the Tribunal directing the Commissioner to undertake a full and appropriate investigation into his complaint. The Appellant sets out the steps which he deems to be appropriate for the Commissioner to take. Legal Framework

1. 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.

2. 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.

3. 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.

4. 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. 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). b. 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

5. The factual background to this case is succinctly set out at [29] to [52] of the Commissioner’s response dated 8 October 2025:

29. The factual chronology of the Commissioner’s handling of both complaints concerning Splend and Nelson/Noble are set out below: (i) Splend - IC-386086-Z4Q7

30. On 30 May 2025, the Applicant submitted a complaint to the Commissioner regarding Splend and their response to his SAR [Annex 1].

31. Between 14 May 2025 and 1 July 2025, the Applicant submitted additional complaints through the Commissioner’s online complaint form, accompanied by supporting documentation.

32. Between 3 and 4 July 2025, the Applicant emailed the Public Advice and Data Protection Complaints Service (PADPCS) and called the Commissioner’s helpline requesting an update. The Applicant was advised of the waiting time for the complaint to be allocated to a case officer.

33. A case officer was assigned to the complaint and allocated case reference IC-386086-Z4Q7.

34. On 22 September 2025, following a review of the evidence provided, the case officer issued an outcome. The case officer considered that Splend may not have been fully compliant with its obligations under the SAR process, namely that it was noted that the Applicant submitted his request via the “ [email protected] ” inbox, rather than the “ [email protected] ” address, which they had designated for information rights requests. However, it was explained by the case officer that under the UK GDPR, there is no 11 prescribed method in which a subject access request must be made, and organisations are expected to recognise such requests regardless of the channel used. In this case, there was an unnecessary delay of approximately three weeks before Splend acknowledged the request. However, there was no evidence to support the Applicant’s claim that Splend failed to provide all personal data within the scope of the request [Annex 2]. The case officer also contacted Splend , requesting that it review its handling of the Applicant’s SAR and issue a detailed final response within 14 days.

35. On the same day, the Applicant responded to the case officer and raised further concerns regarding Splend’s response to his subject access request. He requested that the case officer obtain an itemised list of the disclosure material from Splend, to enable him to identify any missing information. The Applicant also sought clarification on the reference to a three week delay in the outcome. The case officer advised the Applicant to allow Splend the opportunity to respond and provide a detailed reply to his SAR. The case officer also clarified the timeframe of Splend’s response, based on the evidence available.

36. The Applicant subsequently requested that the case officer refrain from disclosing to Splend any information he had provided to the Commissioner in support of his complaint. On 23 September 2025, the case officer advised that, unfortunately, this request had been made too late, as Splend had already been contacted regarding the complaint. Additionally, the online complaint form did not indicate that any of the information submitted should be withheld from the organisation. The case officer further explained that, in order to properly assess and demonstrate the substance of a complaint, it is necessary to share relevant evidence with the organisation concerned.

37. On 26 September 2025, the Applicant enquired whether the Commissioner intends to issue a final response irrespective of whether a response is received from Splend or Nelson.

38. On 29 September 2025, the Case Officer advised that the outcomes of both referenced complaints had been provided, confirming the Commissioner’s view that infringements had been recorded. It was further clarified that these outcomes represent the final position, unless new information emerges following the organisations’ responses to the Applicant. In such a case, the Commissioner’s view may be subject to revision [Annex 3].

39. The Applicant emailed the case officer on 6 October 2025, to confirm that Splend had not provided a response within the allocated deadline.

40. On 7 October 2025, the Applicant reported that the 14-day deadline given to Splend Ltd to issue a final response had passed without any communication or disclosure. The Applicant also noted that a County Court claim regarding Splend’s SAR handling had previously been settled in full before judgment, which they believe reflects an acknowledgment of the breach. The Applicant requested that this update be added to case IC-386086-Z4Q7 and asked whether further enforcement action would be considered in light of Splend’s continued non-compliance.

41. On 8 October 2025, the Case Officer contacted Splend Ltd again to prompt a response. The case officer also contacted the Applicant to acknowledge his concerns about Splend’s compliance with data protection obligations. It was explained that the complaint does not meet the criteria outlined in the ICO’s Regulatory Action Policy (RAP) for formal enforcement. The RAP emphasises a selective approach to regulatory action, typically reserved for the most serious cases. Although no action will be taken at this stage, the complaint will be recorded to help inform future assessments of the organisation’s compliance [Annex 4].

42. On the same day, Splend responded to the case officer and advised that a response had been provided to the Applicant. Subsequently, the Applicant contacted the Case Officer to express dissatisfaction with the responses received from both organisations and confirmed his intention to pursue the matter before the First-tier Tribunal. (ii) Nelson - IC-390540-Z4N4

43. On 30 May 2025, the Applicant submitted his complaint to the Commissioner regarding Nelson and the response to his SAR [Annex 5].

44. A case officer was assigned to the complaint and allocated case reference IC-390540-Z4N4.

45. On 22 September 2025, the case officer contacted the Applicant and requested further information relating to the complaint. 13

46. On 23 September 2025, the Applicant responded to the case officer’s request and provided some additional information.

47. On the same date, the case officer advised that he required evidence of correspondence from the Applicant to Nelson, either requesting an update on their SAR response or submitting a complaint after the statutory timeframe for responding had passed. The Applicant responded on the same day and clarified the timeline of their complaint and provided further evidence.

48. Having reviewed the evidence provided, the case officer wrote to the Applicant on the same day and provided an outcome. The case officer concluded that Nelson had infringed its data protection obligations by failing to respond appropriately to the Applicant’s SAR within the statutory timeframe. Accordingly, the case officer wrote to Nelson notifying them that it must review its handling of the Applicant’s SAR and to provide a full response within 14 days [Annex 6].

49. Later that day, the Applicant emailed the case officer and advised that he will be pursuing legal action to ensure his case is handled fairly and properly.

50. On 24 September 2025, Nelson had responded to the case officer to advise that there had been a miscommunication to the Applicant, as it was believed that the policyholder, Splend, would ultimately respond to the Applicant’s SAR, given that most of the information requested was not within their control, Nevertheless, they had acknowledged to the case officer, that they should have provided the information that they actually had within their control in response to their SAR.

51. On 29 September 2025, the Applicant reported that Nelson had provided only a partial response and were allegedly relying on an invalid justification to deny access to personal data. They requested that this be recorded on the case file and taken into account by the Commissioner when assessing Nelson’s compliance.

52. On 3 October 2025, the case officer contacted Nelson to raise the Applicant’s concerns regarding their SAR response. They requested that the organisation to review their handling and provide a more detailed reply, either by disclosing any additional personal data within scope or by clearly explaining why certain data does not exist or is exempt under the Data Protection Act 2018 . The Applicant was informed about this request on the same day. Conclusions

11. I find that the Commissioner has provided outcomes to the complaints on 22 and 23 September 2025 with further confirmation of those outcomes being provided on 29 September 2025.

12. Contrary to the expectations of many Appellants, section 166 does not provide a right of appeal against the substantive outcome of the Commissioner’s investigation on its merits. 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’.

13. The Appellant’s response to the strike out application requests that the Tribunal order the Commissioner to undertake a substantive investigation in response to the complaint. It is clear that the Appellant is challenging the substantive outcome of the complaint to the Commissioner. The Tribunal does not have the power under section 166 to consider the merits or substantive outcome of a complaint.

14. Section 166 is limited to procedural issues . The Commissioner took steps to investigate and respond to the complaints. It 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. 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: 17 November 2025