Tracey Neilsen v The Information Commissioner

Introduction

1. On 15 August 2025, the Applicant made an application to the Tribunal seeking an order under section 166(2) of the Data Protection Act 2018 (DPA 2018) requiring the Information Commissioner (the Commissioner) to set aside its decision dated 16 July 2025, directing the Commissioner to reopen its investigation and fully consider all evidence submitted and requiring the ICO to make a fresh determination.

2. The Commissioner has not provided any response to the application.

3. It was the Tribunal’s preliminary view that the Applicant had received an outcome in response to her complaint by way of an email from the Commissioner on 16 July 2025. The Applicant was provided with an opportunity to make representations to the Tribunal as to why she believes this application should not be struck out by way of directions issued by Registrar Bamawo on 21 November 2025. 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 ." Conclusions

4. I find that the Commissioner has provided an outcome to the complaint on 16 July 2025. An ‘outcome’ and a ‘decision notice’ are not to be construed as the same thing. An outcome is simply notification of the Commissioners findings following a complaint to the commissioner by the Applicant over the handling of their data. The Applicant in her GRC1 form accepts that the application before the Tribunal is to challenge the outcome provided by the Commissioner on 16 July 2025. She states “I am appealing the ICO’s decision notice dated 16 July 2025.”

5. Once an outcome is provided, the Commissioner is under no duty to progress the complaint further or provide any further updates.

6. The Applicant states that there were no statutory appeal rights detailed within the outcome. The outcome email dated 16 July 2025 clearly states that: “ It may be helpful to explain that you are entitled to take your own cases to court under data protection legislation, irrespective of our decision. The ICO has nor ole in individual applications to the court, so if you wish to pursue this option, you may wish to seek private legal advice”.

7. 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:

8. ’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’.

9. The Applicant’s 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.

10. 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. 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: 12 December 2025