Ashu Mathias Ashu 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 University of Bradford (“the University”) regarding the handling of their subject access request dated 16 October 2024. The complaint was submitted to the Information Commissioner (“IC”) on 16 January 2025 and was dealt with under reference IC-358774-X9B3.

2. I made my initial decision on 17 November 2025, but on application by the Applicant I accept that this contained an error of law and set it aside and remade it on amended grounds. This decision is my re-made decision.

3. On 9 March 2025, the Applicant wrote to the IC making additional complaints against the University, stating that the University had breached Article 5 UK GDPR by unlawfully processing their personal data and Article 17 UK GDPR by failing to erase personal data concerning them.

4. The IC wrote to the Applicant on 11 August 2025. The IC’s case officer explained that they had contacted the University for an explanation as to why they had not responded to the Applicant’s SAR and would assess the University’s compliance with data protection obligations once a response was received. The case officer also explained that it appeared that the University had not complied with the deletion request as the request was unclear and suggested that the Applicant continue to correspond with the University to clarify the request.

5. On 12 August 2025, the Applicant responded to the case officer expressing concerns with the handling of their complaint.

6. On 26 August 2025, the case officer responded to the Applicant explaining that once the University provided a response, the case officer would review and it reach an outcome.

7. On 29 August, having received a response from the University of Bradford, the case officer wrote again to the Applicant The case officer explained that they were of the belief that the University had not complied with their obligations in relation to the SAR but had complied with their obligations in relation to the request for deletion of data.

8. The Applicant requested a case review on the same day. This was acknowledged by the IC on 2 September 2025.

9. On 15 September 2025, the IC’s reviewing officer wrote to the Applicant following a review and advised the Applicant they were satisfied the case officer had dealt with the complaint appropriately and provided an appropriate outcome and guidance in relation to the data protection concerns raised. The reviewing officer confirmed that the IC was satisfied with the University’s handling of the Applicant’s erasure request and that it was appropriate that they ask for further clarification from the Applicant if they were not satisfied they had enough information to proceed with the deletion. The reviewing officer stated that the IC would not consider the complaint further and signposted the availability of court proceedings and/or complaining to the Parliamentary and Health Service Ombudsman,

10. The Applicant wrote again to the IC on 28 September 2025 asking the IC to direct the University to take action to comply with the request for erasure of personal data sent in error. The IC responded that it was not able to consider the matter further or take any additional action. The Application

11. The Applicant applied to the Tribunal by way of form GRC3 dated 6 August 2025. This stated the outcome being sought was “ an order that the ICO progress the complaints against Bradford University and/or reach an outcome ”.

12. In the grounds for the Application, the Applicant stated that the IC had not progressed the complaints or reached an outcome. The strike-out application

13. The IC applied by way of form GRC5 dated 10 September to strike out the Application on the basis that there is no reasonable prospect of it succeeding under Rule 8(3)(c) (the “strike-out application”).

14. The reasons which the IC gave for striking out the application were set out in its Response at paragraph 23 which stated “ The application shows no discernible grounds that would warrant the Tribunal exercising its powers under “ section 166(2) of the DPA18, given that the Commissioner has now provided an outcome on 11 August 2025 and a further outcome on 29 August 2025. There is therefore no reasonable prospect of persuading the Tribunal to make any order pursuant to section 166(2) of the DPA18, as there are no longer any procedural issues that remain outstanding for the resolution of the complaint.

15. I directed that the Appellant should provide representations in relation to the strike out application by 20 October 2025 under Rule 8(4)

16. The Applicant responded to my case management directions by email dated 9 October 2025. This email read as follows: “The Appellant respectively request that the Tribunal dismiss the ICO's strike out application based on the following grounds:

1. The strike out application was submitted after the deadline because it was not submitted before 5pm on 10 September 2025, contrary to rule 12(1). The ICO did have sufficient time to have submitted the application but failed to do so, and did not provide a reason at the time the application was submitted.

2. The appellant's application has reasonable prospect of success. Hence strike out is not appropriate. The claimant refers the Tribunal to correspondence submitted by the claimant on 29 September 2025. “ Legal framework

17. 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.”

18. 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.

19. 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 complaintincludes— (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.”

20. 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."

21. 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... ”.

22. 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).

23. 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.”

24. 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.”

25. 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

26. I deal first with the question of whether the strike out application was late and should therefore not be admitted. The Applicant says that it was filed after the deadline of 5pm on 10 September 2025 and provided no reason for the late submission. I note from the file that the strike out application was submitted by email at 1845 on 10 September 2025, so less than two hours late. Taking into account the overriding objective to deal with cases fairly and justly, and in particular the need to ensure that all parties can, so far as is practicable, participate fully in the proceedings and the need to avoid unnecessary formality and seeking flexibility in the proceedings, I do not consider it is proportionate to disallow the application because it was received on the correct day but less than two hours late. This is because even if it had arrived at 5pm on that date, it would not have been reviewed by administrative staff until the following morning, and there is no prejudice to either party from the short delay, which I do not consider to be significant or serious in all the circumstances. I therefore disagree with the Applicant that the strike out application should fail for this reason.

27. Turning to the question of whether the Applicant’s application has a reasonable prospect of success, 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 11 August 2025 with a further response on 29 August 2025.

28. I am satisfied that when the response dated 11 August 2025 is taken together with the response dated 29 August 2025, these responses have provided an outcome to the Applicant’s complaint, 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.

29. 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.

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

31. 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 given I have found that an outcome was provided.

32. 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.