James Kelsall 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 Department of Work and Pensions (“DWP”) regarding a subject access request (“SAR”) he had made to the DWP. The complaint was submitted to the Information Commissioner (“IC”) on 1 January 2025 and was dealt with under reference IC- IC-353308-Y8P8.

2. The complaint made to the IC on 1 January 2025 was about a SAR that the Applicant had made to the DWP. The Applicant claimed that information had been unlawfully withheld from him, in particular correspondence between the DWP and Independent Case Examiner. This information was withheld from him in the context of a previous SAR. This appears to the Tribunal to have concerned the SAR made to the DWP by the Applicant on 19 August 2024 for “ all records currently held by the Independent Case Examiner in relation to me”. The complaint stated: “On the 28th of November, I made a complaint to the DWP regarding data which was missing from its response to a right of access request. The DWP has not made any attempt to respond to my complaint or to provide the missing data. DWP staff are unlawfully concealing personal data, seemingly because it is of a nature which would embarrass them.”

3. Having considered the complaint, the IC’s case officer wrote to the Applicant on 8 January 2025. The Applicant was informed that the IC had contacted the DWP about the Applicant's complaint and that the DWP had been asked to respond to the Applicant's concerns about the SAR. In the same communication, the Applicant was informed by the case officer that case reference IC-353308-Y8P8 (the “Second Complaint”) had been closed as the complaint was connected to another open complaint from the Applicant about the DWP under reference IC-328467-M8G7 (the “First Complaint”). The case officer advised the Applicant that as he had already had a case and service review on the First Complaint the IC did not intend to conduct any further reviews. It stated “ We have acted on information you provided, so it is extremely unclear why you would be dissatisfied that we considered your complaint when you asked us to do so. However, we do not intend to respond further on the review element to this complaint.”

4. On the same day the IC’s case officer wrote to the DWP about the Second Complaint.

5. On 8 January 2025, in response to the IC’s email, the Applicant wrote to the IC about its decision to link the First and Second complaints, with which he disagreed. He stated that : “ While the breaches reported under [the First Complaint] were the reason for me having made the right of access request that is the subject of [the Second Complaint], the DWP’s decision to withhold data from the right of access response is a separate breach to those reported under [the First Complaint]. breaches, not for locating evidence relating to the breaches under [the First Complaint]. The request made under has been handled by all relevant parties as being separate from the breaches, and the [some words appear to be missing here] To be clear, the right of access request referred to under [the First Complaint] is NOT this right of access request. The right of access request under [the First Complaint] was for the lawful basis and source of a specific document (and a related reference number) for the purpose of identifying the data controller that holds responsibility for the reported breaches, whereas the request under [the Second Complaint] was a wide-scope one intended to locate any additional breaches that may have occurred. The fact that correspondence regarding a matter linked to [the First Complaint] revealed that data had been withheld from the response to the request under IC-[the Second Complaint] is largely irrelevant - how the breach was discovered is distinct from how the breach occurred, and it is entirely clear that the breach under [the Second Complaint] is distinct from the series of breaches under [the First Complaint]. In any case, I have today received new evidence (in response to a right of access request, but not the ones complained about under [the Second Complaint] or [the First Complaint]) which … proves further issues have occurred in relation to [the First Complaint].”

6. The remainder of this email is concerned with this new evidence and what the Applicant believes it to show about the accuracy and completeness of the DWP’s response to the First Complaint. The Application

7. The Applicant applied to the Tribunal by way of form GRC3 dated 28 July 2025. He stated that the outcome he was seeking was: “ An order to progress the complaint made on the 1st of January 2025 (IC-353308-Y8P8). ”

8. In his grounds for the Application, the Applicant stated: “On the 2nd of January 2025, the [IC] stated he could not handle my complaint unless I provided a copy of the request and the entire response from the data controller (the DWP). I provided the request by email later the same day, but stated that it would be difficult to provide the entire response (due to the controller having sent the response in hard copy, and the scanned file being too large for an email attachment). I asked the [IC] to confirm how he would prefer me to provide the response - by uploading it to a third party file sharing service and providing him with the link, or by splitting the file and providing it as attachments across multiple emails On the 8th of January 2025, the [IC] indicated he had merged this complaint with another (IC-328467-M8G7) which was about an entirely different breach by the same controller. The [IC] subsequently decided to take no further action in this case because he had already handled IC-328467-M8G7 (he also claimed that he had reviewed the handling of IC-328467-M8G7 and therefore would not review the decision to merge the two cases, but the only review was of a prior decision not to handle IC-328467-M8G7, which he later accepted had been wrongful - the actual handling of IC-328467-M8G7 had not been the subject of any review, as he has since accepted, meaning the decision to refuse a review of the decision to merge the two distinct cases was based on information that the Information Commissioner knew to be inaccurate). I challenged the [IC’s] decision not to handle IC-353308-Y8P8 later on the 8th of January 2025, outlining that the two cases related to entirely different breaches. The [IC] made no attempt to respond to that dispute. I have since received no response to this complaint from either the data controller (DWP) or the [IC]. The maximum time limit for the [IC] to respond expired on the 1st of July 2025, and he has made no attempt to respond.” The strike-out application

9. The IC applied by way of form GRC5 dated 28 August 2025 to strike out the Application 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. In summary, these were as follows: a. On 8 January 2025 the IC’s case officer wrote to the Applicant, having considered the complaint. In that communication the IC informed the Applicant that the IC had taken action by contacting the DWP and asking them to respond to the concerns raised by the Applicant. This was an appropriate response to the complaint and constituted the Applicant having been provided with an outcome b. It is clear from the grounds in support of the application that the Applicant does not agree with the outcome provided on his complaint. However, as set out above, 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. The IC has taken 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. d. If the Applicant wishes to seek an order of compliance against the DWP for any alleged breach of his data protection rights, the correct route for him 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 provided a Reply to the Response dated 11 September 2025, which deals with the strike-out application as well as the substantive response, The points made by the Applicant, in summary, were as follows: a. The IC inappropriately merged the First and Second Complaints which dealt with “ fundamentally different breaches ”. The breach in the Second Complaint was deliberate, whereas the First Complaint occurred primarily due to gross negligence. Merging the cases prevented a case review on the Second Complaint, breaching the IC’s procedures. The Applicant argues that the Tribunal has jurisdiction because there was a procedural breach and the IC may not have properly handled the complaint. b. The IC claimed that the Second Complaint was linked to an open case, but the First Complaint was already closed. Closing the Second Complaint without investigation and misleading the Tribunal about the reasons for this was dishonest. c. The Applicant argues that it is illogical for the IC to argue that the appeal has no reasonable prospect of success because if jurisdiction exists, it implies mishandling by the IC. Therefore prospects of success are high. d. The IC discriminated against the Applicant who is disabled. The Applicant made particular complaints about a case officer at the IC of “ discriminatory abuse ”. The IC refused to investigate service complaints about this individual. The IC closed complaints without outcomes, contrary to legal requirements. e. The IC has displayed persistent dishonesty across multiple appeals before the Tribunal, including treating different complaints as the same, claiming the Tribunal lacks jurisdiction when refusing to handle complaints and suggesting complaints outside the Tribunal have no prospect of success The Applicant makes allegations of the IC concealing evidence and submitting false information knowingly. The Applicant is considering an application for certification of contempt in this connection.

12. By directions dated 3 October 2025 Registrar Woollard directed that the Applicant should provide any representations in relation to the strike out application by 20 October 2025 under Rule 8(4). No response has been received by the Tribunal to this direction, but in light of the Appellant’s Reply I am satisfied that the Applicant has had an opportunity to make representations on the proposed striking out under rule 8(4). Legal framework

13. 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.”

14. 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.

15. 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.”

16. 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."

17. 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... ”.

18. 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).

19. 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.”

20. 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.”

21. 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

22. 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 8 January 2025. I consider that the response dated 8 January 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. Writing to the DWP to inform it of the Applicant’s concerns was, in my view, an appropriate step.

23. I find that the Second Complaint was made in the context of and against the backdrop of a SAR made to the DWP by the Applicant on 19 August 2024 for “ all records currently held by the Independent Case Examiner in relation to me”. I find that the First Complaint was also made in this context. I find that the Applicant accepts that “ the breaches reported under [the First Complaint] were the reason for me having made the right of access request that is the subject of [the Second Complaint]”. Accordingly, I consider that the IC was entitled when considering the Second Complaint to consider it alongside the First Complaint, because both arise from a single course of dealing with the DWP that has its origin in the August 2024 SAR. They may have concerned separate breaches, but both sets of breaches were in relation to the DWP’s response to this earlier SAR. So I find that the IC was entitled to take this into account when considering how to handle the Second Complaint. I do not accept the Applicant’s assertion that this shows dishonesty on the part of the IC, as this does not appear to me to be supported by the evidence.

24. The steps taken by the IC are 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.

25. 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.

26. Although the outcome sought by the Applicant is stated to be an order to progress the Second Complaint, it is clear from his appeal documents that what the Applicant is trying to achieve by this is to compel the DWP to give him further data which he says is missing from its response to his earlier SAR. 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. 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. If the Applicant wishes to compel DWP to provide further information in response to his requests, this is a matter for the civil courts. Similarly, under section 166 the Tribunal has no power to deal with the allegations of discrimination or dishonesty made by the Applicant.

27. 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.

28. I am also satisfied that there is no reasonable prospect of the case, or any part of it, succeeding because the Tribunal has no power under section 166 to compel the DWP to supply further information in relation to its response to an SAR.

29. 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.