FT/EA/2025/0203/GDPR - [2025] UKFTT 01313 (GRC)

I start by addressing the nature and effect of section 166. The Commissioner, in his response to the Application (and his associated strike-out application), referred to various authorities from case law in that regard (in decisions of the Upper Tribunal, the High Court and the Court of Appeal). It is not necessary for me to refer to that case law again in this decision, but I accept the relevance to the Application of the various authorities which the Commissioner referred to.

I consider that it is appropriate, though, to briefly summarise the legal position based on those authorities. In essence (and so far as is relevant for current purposes) the following are the relevant legal principles.

An application under section 166:

In other words, an application under section 166 does not address the merits or substance of a complaint but rather is merely procedural in nature: it is concerned only with procedural actions which the Commissioner is required to take in respect of the complaint.

The test (in section 166(1)(a)) as to whether the Commissioner has failed “to take appropriate steps to respond to the complaint” is exactly as it says – namely “appropriate steps” and not an ‘appropriate outcome’ (or similar). Likewise, the Tribunal’s powers where the Commissioner has failed to take appropriate steps include making an order that the Commissioner must “take appropriate steps to respond to the complaint” (and not to ‘take appropriate steps to resolve the complaint’).

It is also well established that the Tribunal does not undertake an oversight role over the Commissioner’s exercise of his functions or internal processes. In considering an application under section 166, the Tribunal must bear in mind that the Commissioner is the expert regulator and so is in the best position to consider the merits of a complaint and to reach a conclusion as to its outcome. Likewise, the Commissioner has a very broad discretion as to how he investigates complaints. However, whilst the Commissioner’s view carries weight, it is not decisive.

The Applicant provided submissions to the Tribunal in respect of the strike out application (and in reply to the Comm’s response). Amongst other things, he challenged that the Commissioner was an ‘expert regulator’ – however, that is simply a reflection of the position established by case law, which the Tribunal needs to take into account (as I have mentioned).