Nicola J Ratcliffe 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 Sunderland City Council (the “Council”) regarding her Subject Access Requests (“SAR”) dated 22 July 2025 (together with an earlier one submitted by her solicitor on 5 March 2024). The complaint was submitted to the Information Commissioner (“IC”) on 4 September 2025 and was dealt with under reference IC-430421-F0H1.

2. On 1 November 2025, upon considering all the information provided, the IC’s case officer wrote to the Applicant. This response detailed the role of the IC and provided the view that the Council had infringed data protection law as they had not responded to the SAR within the statutory timeframe. The case officer confirmed they would write to the Council to provide compliance advice and make further enquiries about their backlog. The case officer stated that there were no further actions for the IC to take at the moment, but the IC would retain a copy of the complaint on its records.

3. On the same date, the Applicant responded providing an update stating she had still not received a response and that she was seeking alternative ways to obtain the information.

4. On 10 November 2025, the IC wrote to the Council about the Applicant’s complaint.

5. On 13 November 2025 the Council replied to the case officer confirming that the Applicant’s SAR was in a backlog and that there were 138 open cases ahead of hers. However, it was noted that much of the information requested by the Applicant was the same as that provided in response to previous SARs made by her in 2019 and 2021. Two service areas were still gathering information for the residual and most recent information. Thus, it was anticipated that a response would be in the near future.

6. On 19 November 2025, the case officer wrote to the Applicant and provided her with an update in the above terms. The Application

7. The Applicant applied to the Tribunal by way of form GRC1 dated 8 November 2025. She stated that the outcome she was seeking was as follows: “The Appellant requests that the Tribunal allows the appeal and makes a substituted decision to secure compliance with the [DPA 2018]. Specifically, the Appellant request the Tribunal compels the data controller Sunderland City Council to do the following:

1. Fully comply with the Subject Access request dated [22 July] 2025 by disclosing all personal data wrongfully withheld

2. Complete the disclosure within a short and defined time frame (eg 14 days) from the date of the Tribunal’s order.”

8. In her grounds for the Application, the Applicant stated that she considered that the IC’s decision communicated in its letter dated 1 November 2025 was wrong, inadequate and contrary to the IC’s statutory duties. In summary, she made the following points: a. The IC’s decision to close the case without taking enforcement action or issuing a notice to compel disclosure under section 165 constitutes a failure to take appropriate steps to respond to a formal complaint and provides an inadequate remedy for a confirmed infringement. b. The IC’s decision fails to remedy the continuing infringement of the Applicant’s data rights. By closing the complaint, the IC has permitted the Council to continue withholding the Applicant’s data, effectively condoning the breach. The IC’s action has not addressed the core issue of systemic failure in the Council’s practice for over two decades. The strike-out application

9. The IC applied by way of form GRC5 dated 21 November 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, particularly at paragraphs 24-31 and 33-38. In summary, these were as follows: a. The remedies sought by the Applicant are not outcomes that can be provided under section 166 DPA18, nor are they within the jurisdiction of the Tribunal. Rather, the Tribunal is being asked to make what, in essence, is a Compliance Order against the Council which is a matter which should be before the County Court. Insofar as any criticism of the IC is concerned in this respect, the Court of Appeal observed in Delo that the IC is not “ obliged to operate the complaints regime as a cost-free alternative to a claim under Article 79 ”[94]. b. Section 166 is a forward-looking provision for procedural remedies in relation to an outcome only. The IC has reviewed the information and provided an outcome on 1 November 2025 in accordance with his duties under the legislation and above authorities. c. Contrary to the Applicant’s submission, there is no requirement for the IC to take enforcement action, nor is the Applicant entitled to a particular outcome, let alone a determinative one. It is for the IC who has the broad discretion and expertise to exercise his regulatory judgement, including taking no action. d. The IC has taken appropriate steps to investigate and respond to the Applicant’s complaint, providing them with an outcome. Accordingly, it is respectfully submitted that the IC has taken steps to comply 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. e. It is clear that the Applicant disagrees with the outcome reached by the IC on their 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) . This is simply not the case in this matter, and the Tribunal is invited to treat this as a “by the backdoor” merit based complaint dressed as a procedural complaint, this is explicitly warned against in Smith and should not be entertained by the Tribunal. f. If the Applicant wishes to seek an order of compliance against the controller for breach of her data rights, the correct route for her to do so is by way of separate civil proceedings in the County Court or High Court under section 167 of the DPA18.

11. I directed on 9 December 2025 that the Applicant should provide representations in relation to the strike out application by 31 December 2025 under Rule 8(4).

12. The Applicant made representations on 11 December 2025, so I am satisfied that the Applicant has had an opportunity to make representations on the proposed striking out under rule 8(4). The points made by the Applicant, in summary, were as follows: a. The Tribunal’s power to intervene stems directly from the IC’s failure to adequately comply with its section 165 obligation to take steps to respond to complaints including investigating to the extent that it feels is appropriate. The Tribunal must decide for itself, applying an objective test, whether the IC has taken appropriate steps to meet the duty in section 165. b. The IC’s response dated 1 November 2025 is “the definition of a formalistic remedy”. While the email confirms the IC acted under section 165, the action taken was insufficient to discharge that duty. c. The IC has demonstrated knowledge of a systemic procedural failure within the Council, namely a backlog in dealing with SARs. d. The Applicant does not accept the procedural closure of the complaint. e. This is a challenge to the appropriateness and completeness of the IC’s regulatory process in fulfilling its section 165 duties, which constitutes a failure to comply with section 166(1) and is therefore firmly within the Tribunal’s jurisdiction. f. The Applicant withdraws her request for a compliance order against the Council. g. The Applicant requires the IC to take a specified appropriate step which in her view is a direction that the IC: • Undertake a full regulatory review of the Council’s handling of the Applicant’s SAR and • Issue a formal enforceable direction to the Council requiring the immediate provision of the requested personal data and a requirement for the IC to monitor and report back to the Applicant on the Council’s compliance.

13. The Applicant also made further submissions on 13, 14 and 23 December 2025 about the difficulties which she has had communicating with the Council in the past. The last of these focused on a letter received from the Council on 18 December 2025 which gave information about how the Council is dealing with the Applicant’s personal data. I have read these submissions and considered them when making this decision. 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 - 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.”

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. The first question is whether the IC provided an outcome to the Applicant’s complaint. The IC provided the Applicant with a response to her complaint on 1 November 2025. I consider that this response 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. 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.

24. 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.

25. The outcome sought by the Applicant in the Application includes that the Tribunal orders the IC to compel disclosure by the Council of the information it has withheld. The Tribunal has no power under section 166 to make such an order for disclosure to the Applicant. Its powers are limited to ordering the IC to progress its handling of the Applicant’s complaint.

26. 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. 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. Accordingly, I find that the Tribunal does not have the power to grant the outcomes sought.

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. 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.

28. 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.