Roy Warner v The Information Commissioner [2026] UKFTT 1198 (GRC)

[2026] UKFTT 01198 (GRC)

Case Reference: FT/EA/2025/0083

First-tier Tribunal

(General Regulatory Chamber)

Hearing Heard on: 14 th August 2026 by Cloud Video Platform

Date 24 August 2026

Information Rights

Before

JUDGE ARMSTRONG-HOLMES

Between

ROY WARNERAppellant

THE INFORMATION COMMISSIONERRespondent

in person for Applicant

not in attendance for Respondent

Decision: The application is struck out under Rule 8(2) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

REASONS

[1]This is an application by the Information Commissioner (“the Commissioner”) to strike out the Appellant’s application under section 166(2) of the Data Protection Act 2018. The Commissioner’s application is made pursuant to Rule 8(2)(a) and/or Rule 8(3)(c) on the basis that the Tribunal had no jurisdiction to consider the application or that the application has no reasonable prospect of succeeding. The Applicant opposes this application and the Commissioner had confirmed, in advance of the hearing, that he did not intend to be in attendance or represented at the hearing of this application.

Background and Chronology

[2]Background and Chronology On 11th June 2024, the Applicant made a complaint to the Commissioner, together with supporting evidence, about Waddesdon Estates LLP and the way that a photograph had been taken of him and how it was being handled.

[3]On 17th September 2024, with over three months having elapsed since he made his complaint to the Commissioner, the Applicant telephoned the Commissioner’s Helpline to advise that he was going to apply to the First-tier Tribunal to have his complaint answered. The Applicant was advised by the Helpline case officer that they believed that his complaint would be assigned a case officer in the next couple of weeks. This was of course well outside of the three-month period within which the Commissioner is required to respond to a complaint pursuant to section 166(1)b of the Data Protection Act 2018.

[4]On 6th October 2024, the Applicant sent a chaser email to the Commissioner as a result of not receiving an update on his complaint, and on 9th October 2024, the assigned case officer wrote to the Applicant with an outcome to the complaint, which stated as follows:

“Firstly, we wish to address your concerns relating to the picture being taken. Waddesdon's have explained that "The email to you from Elizabeth Taylor of Freeths on 29 May at 12:03 provides adequate explanation of the lawful basis for the inclusion of the photograph in the court bundle since it is both legally necessary and in the LLP’s interest that there should be evidence of service of formal process." The ICO is satisfied with this response. Furthermore, whilst we understand you have requested that the picture be deleted, it has been explained on 31 May 2024 that "The photograph was taken in connection with the performance of a public task (namely, the administration of justice) and as such was both lawful and necessary for a purpose which is ongoing. I have considered your request in that context against the criteria set out at Article 17(1)(a) to (f) of the UK GDPR, and cannot see that any of these criteria are satisfied in the present circumstances. As such, the LLP is not able to comply with your request, but you may rest assured that the data will only be used for the limited purpose for which it was collected, and that as soon as the LLP no longer have a proper basis for continuing to process that information, it will be erased." The ICO is satisfied that Waddesdon's have responded accordingly in this instance. Finally, in correspondence dated 10 June 2024 you make reference to the Human Rights Act 1998. Please note that the ICO does not oversee this Act, and as such we are unable to comment on it further. Therefore, based on the information provided to the ICO, we are satisfied that your personal data is being handled accordingly and indeed that there is no clear evidence of it being shared unlawfully. As such no further action will be take at this time and the case will now be closed.”

[5]On the same date as the outcome was provided to the Applicant, he responded to the Commissioner to state that he was unhappy with the outcome and requested that the case be reconsidered. The case officer acknowledged the Applicant’s dissatisfaction and provided him with information on how he could make a complaint about how his case had been handled.

[6]On 14th October 2024, the Applicant requested a review of his case.

[7]On 25th October 2024, a review outcome was issued. The reviewing officer confirmed that they were satisfied that the original case officer had dealt with the complaint appropriately and in line with the Commissioner’s case handling procedures. The reviewing officer upheld the original outcome and informed the Applicant of his right to pursue independent legal action against Waddesdon Estates LLP, and of his right to complain to the Parliamentary and Health Service Ombudsman if he was dissatisfied with the service he had received.

[8]On 10th October 2024, the Applicant made an application to the Tribunal under section 166(2) of the Data protection Act 2018. That application does not appear to have been sent to the Commissioner by the Tribunal until 23rd April 2025 however.

[9]On 4th June 2025, the Commissioner issued a new review outcome, having reviewed both the complaint and the previous case review of 25th October 2024. The new reviewing officer took a different view to the previous reviewing officer and determined that the correct legal basis which Waddesdon Estates LLP may be able to rely upon was ‘legitimate interests’ rather that ‘public task’. The new reviewing officer explained that “it is likely that the taking of the photograph as evidence of service, may not have infringed the DPA in this instance and that this may not change the outcome of [the] complaint.”. The new reviewing officer confirmed that they would write to Waddesdon Estates LLP and provide compliance advice, and the Applicant was reminded of his right to pursue independent legal action against the organisation, in addition to his right to complain to the Parliamentary and Health Service Ombudsman.

[10]The new reviewing officer sent an email to Waddesdon Estates LLP on the same date, providing compliance advice.

Applications under section 166 DPA 2018

[11]Applications under section 166 DPA 2018 Section 165 DPA 2018 stipulates that a data subject has a right to make a complaint to the Commissioner if they consider that the processing of personal data relating to them infringes the UK General Data Protection Regulations (“UK GDPR”), and/or Parts 3 or 4 of the Data Protection Act 2018 (“DPA 2018”). Sections 165(1) and (2) provide as follows:

“165(1) Articles 57(1)(f) and (2) and 77 of the UK GDPR (data subject’s right to lodge a complaint) confer rights on data subjects to complain to the Commissioner if the data subject considers that, in connection with personal data relating to him or her, there is an infringement of the UK GDPR. (2) A data subject may make a complaint to the Commissioner if the data subject considers that, in connection with personal data relating to him or her, there is an infringement of Part 3 or 4 of this Act.”

[12]Once it is established that an individual’s complaint falls within either section 165(1) or 165(2), then sections 165(3)-(5) set out what action the Commissioner must take in terms of the administration of the complaints process.

[13]Section 166 of the DPA 2018 deals specifically with failures on the part of the Commissioner to progress and respond to the complaint as required by section 165. A data subject may, in the particular circumstances detailed within section 166(1), apply to the Tribunal for an order requiring the Commissioner to take appropriate steps to respond to the complaint (s.166(2)(a)) or to inform the complainant of the progress of the complaint, or of the outcome of a complaint, within a period specified by the order (s.116(2)(b)).

[14]Section 166 DPA 2018 reads as follows:

“166(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. (3) An order under subsection (2)(a) may require the Commissioner– (a) to take steps specified in the order; (b) to conclude an investigation, or take a specified step, within a period specified in the order.”

[15]As is made clear from these provisions, the Tribunal may only exercise its powers under section 166(2) if one of the three conditions cited within section 166(1) exist. There have been a number of appeal decisions which have considered the scope of section 166, and it is well 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 as follows:

[16]In Killock v Information Commissioner

[2021] UKUT 299 (AAC)

, The Upper Tribunal stated 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 s.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 s.166 towards a decision on the merits of the complaint must be firmly resisted by Tribunals.”

[17]In the High Court in R (Delo) v Information Commissioner

[2022] EWHC 3046 (Admin)

, Mostyn J, at paragraph 57, commented upon the handling of complaints by the Commissioner as follows:

“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

), with Warby LJ, commenting as follows at paragraph 80:

“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.”

[19]The decision of the Upper Tribunal in Cortes v Information Commissioner (UA-2023-001298-GDPA), which applied both Killock and Delo in confirming that the nature of section 166 is that of a limited procedural provision only.

Judge Wikeley commented at paragraph 33 as follows:

“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). It will do so in the context of securing the progress of the complaint in question” (Killock and Veale, paragraph 87). 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 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]More recently, the Upper Tribunal decision in 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.”

[21]In considering whether any further ‘appropriate steps’ need to be taken by the Commissioner, the Tribunal must give weight to the views of the Commissioner as an expert regulator. This requirement is identified in Killock at paragraph 85, which is 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.”

Tribunal’s powers to strike out the proceedings for lack of jurisdiction

[22]The Tribunal must strike out the proceedings where there is no jurisdiction to determine the matters before it. Rule 8(2) reads as follows:

“8(2) The Tribunal must strike out the whole or part of the proceedings if the Tribunal– (a) Does not have jurisdiction in relation to the proceedings or that part of them; and (b) 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.”

Tribunal’s power to strike out the proceedings where no reasonable prospect of success

[23]The Tribunal may strike out the proceedings where the Tribunal considers there is no reasonable prospect of the case succeeding.

(c) provides:

“8(3) The Tribunal may strike out the whole or part of the proceedings if– … (c) the Tribunal considers there is no reasonable prospect of the appellant’s case, or part of it succeeding.”

Evidence

[24]The Tribunal had been provided with a Hearing Bundle of 131 pages in advance of the hearing. However, the Applicant confirmed that he had sent some further documents to the Tribunal over the course of the previous weekend. These did not appear to have been received by the Tribunal, and the Appellant was therefore asked to send them again. The documents included the Applicant’s ‘Bundle Volume 1’, comprising of 65 pages, and ‘Bundle Volume 2’ which comprised of 105 pages. Volume 1 contained the Applicant’s written response to the Commissioner’s application, and Volume 2 was a bundle of authorities which the Applicant was relying upon.

[25]I granted permission for the Applicant to rely upon these documents at the hearing. Additionally, the Applicant provided the Tribunal with a copy of his Opening Statement, comprising of 4 pages, which he read out at the start of the hearing.

[26]I have read and considered all of these submitted documents in reaching my decision.

Summary of Commissioner’s submissions

[27]Summary of Commissioner’s submissions A summary of the Commissioner’s written submissions is provided below:(a) That it is clear from the Applicant’s grounds in support of the application that he does not agree with the outcome of his complaint.

(b) That s.166(2) DPA 2018 does not provide a mechanism by which Applicants can challenge the substantive outcome of a complaint, and that the relief available from the Tribunal applies only where it is satisfied that the Commissioner has failed in some procedural respect to comply with the requirements of s.166(1) DPA 2018. Such relief is limited to the orders set out in section 166(2) DPA 2018.

(c) The Commissioner has taken steps to comply with the procedural requirements set out in s.166(1) DPA 2018, and there is therefore no basis for the Tribunal to make an order under s.166(2) DPA 2018.

(d) That the correct route for the Applicant to seek compliance against Waddesdon Estates LLP for breach of his data rights is by way of separate civil proceedings in the County Court or High Court under s.167 DPA 2018.

Summary of Applicant’s oral and written submissions

(c) Summary of Applicant’s oral and written submissions

[28]A summary of both the written and oral submissions of the Applicant is provided below:(a) That he does not seek a determination that Waddesdon Estates LLP breached the UK GDPR, a merits appeal against the Commissioner’s regulatory judgment, a fresh investigation by the Tribunal, or substitution of the Tribunal’s opinion for that of the Commissioner. Instead, the application concerns whether the Commissioner properly discharged the statutory complaint-handling functions entrusted to him by Parliament.

(b) That neither of the Commissioner’s proposed grounds to strike out the application have been established.

(c) That there remain live procedural issues concerning whether the commissioner took appropriate steps in response to the complaint.

(d) That it is not accepted that the communications received from the Commissioner constituted a lawful or procedurally sufficient outcome under s.166(1)(a)-(c) DPA 2018. The ‘outcome’ letters were vague, contradictory and inconsistent in both reasoning and scope, reflecting procedural confusion rather that a clear and final determination of the complaint. This is supported by the Commissioner’s change in stance in stating that Waddesdon Estates LLP was entitled to rely upon ‘public task’ and then subsequently changing this to ‘legitimate interests’.

(e) The shifting rationale and later revision by the reviewing officer on 4th June 2025 undermines the assertion that a meaningful outcome had already been delivered as of 9th or 25th October 2024.

(f) The Tribunal retains jurisdiction to assess whether, as a matter of procedural fairness and statutory compliance, the Commissioner properly responded to the complaint in accordance with s.166(1) DPA 2018.

(g) That there remains a realistic prospect of the application’s success.

Discussion and Conclusions

[29]As the body of case law I have set out above at paragraphs 16 to 21 makes clear, the Tribunal’s powers under s.166 DPA 2018 are limited to procedural issues rather than the merits or substantive outcome of a complaint. The Applicant’s case is advanced on the basis that he has not been provided with any meaningful outcome for the purposes of s.166(2) DPA 2018, in that the subsequent reviews carried out by the Commissioner, following the purported outcome of 9th October 2024, were contradictory and clearly evidenced confusion on the part of the Commissioner.

[30]The Applicant’s complaint to the Commissioner concerned the photograph that Waddesdon Estates LLP had taken of him, which he considered breached his data rights under the UK GDPR. In providing him with an ‘outcome’ on 9th October 2024, the Commissioner’s view was communicated that he was satisfied that Waddesdon Estates LLP had correctly relied upon a lawful basis (Article 5(1)(a) UK GDPR) to process (handle) the photograph. As such, the Commissioner expressed a view that he was satisfied that the personal data in question (the photograph) was being handled appropriately, and that there was no evidence of it being shared unlawfully. The fact that the Commissioner subsequently changed his view, apparently on his own initiative, in the review of 4th June 2025 did not change this position. The review did not change the Commissioner’s view that Waddesdon Estates LLP was entitled to rely upon there being a lawful basis for the processing (Article 5(1)(a) UK GDPR), but instead simply changed the Article 6 UK GDPR basis from Article 6(1)(e) (‘public task’) to Article 6(1)(f) UK GDPR (‘legitimate interests’). Given that the photograph was taken in connection with the service of documents relating to civil proceedings, it is not entirely surprising that both Waddesdon Estates LLP and the Commissioner initially took the view that this was a ‘public task’ for the purposes of the UK GDPR, particularly given the wording of Article 6(1)(e) which is that “processing is necessary for the performance of a task of the controller carried out in the public interest or a task carried out in the exercise of official authority vested in the controller.”. A party acting in furtherance of assisting the court might well consider that it is performing a task in the exercise of official authority vested in it by the court, even if that isn’t the true position. However, the fact that the Commissioner later reviewed the position again, having already issued an outcome and a first review, demonstrates that he gave full and proper consideration to the Applicant’s complaint. He was, of course, not required to conduct a further review.

[31]The Applicant is clearly dissatisfied with the outcome of the Commissioner’s investigation, but I am satisfied that the Commissioner’s email of 9th October 2024 was an outcome for the purposes of s.166(2) DPA 2018, where the Commissioner expressed a view that the photograph was being processed lawfully. I do not consider that this is an application of the type contemplated by Upper Tribunal Judge Stout in Dr Michael Guy Smith v Information Commissioner

[2025] UKUT 74 (AAC)

where an outcome has been provided, but where an appropriate step has been omitted by the Commissioner. For these reasons, I am satisfied that the Tribunal does not have jurisdiction to consider this application and I therefore strike out the application under Rule 8(2) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory chamber) Rules 2009.