The application under section 166 of the Data Protection Act 2018 is STRUCK OUT under rule 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009.

In this decision, ‘the Application’ is a reference to the application made to the tribunal by Dr Patel under section 166 of the Data Protection Act 2018 (DPA) and ‘the Applicant’ is a reference to Mr Patel

The Commissioner applies by way of a GRC5 submitted with his response for the Application to be struck out under rule 8(2)(a) (no jurisdiction) or 8(3)(c) (no reasonable prospects of success) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. The basis for the application is that that Commissioner has now provided an outcome and no further steps remain to be taken.

The Applicant was given the opportunity to provide representations in relation to the strike out application by an order of Judge Heald dated 11 March 2026 but none were provided.

The Application was made on 18 January 2026 on the basis that the Commissioner had not responded to the Applicant’s complaint. The Commissioner’s response to the Application, dated 16 February 2026, sets out that the Commissioner has now responded to the complaint, and provided an outcome dated 6 February 2026 in which the Commissioner concluded that it appeared that the data controller had not complied with its data protection obligations.

On an application to the tribunal under section 166, the tribunal has no power to deal with the merits of the complaint to the Commissioner or its outcome (confirmed in Killock & Veale & ors v Information Commissioner[2021] UKUT 299 (AAC) (Killock & Veale).

It is important to state that the fact that an outcome has been provided does not automatically mean that an Application has no reasonable prospects of success. The Upper Tribunal decision in Smith v Information Commissioner[2025] UKUT 74], by which I am bound, makes that clear.

However, once an outcome to a complaint has been provided, the circumstances in which the tribunal has the power retrospectively to order the Commissioner to take appropriate steps to respond to the complaint are limited. That is because the principal remedies for enforcing rights or challenging the Commissioner are either claims against the data controller or judicial review of the Commissioner and section 166 should not be used to obtain ‘by the back door’ a remedy normally only available in these proceedings. (Killock & Vealeand R (on the application of Delo) v Information Commissioner and Wise Payments Limited [2023] EWCA Civ 1141 and Smith v Information Commissioner[2025] UKUT 74].

Further, when deciding objectively whether any (further) appropriate step needs to be taken by the Commissioner, the tribunal must take into account and give weight to the views of the Commissioner as an expert regulator. The extent of respect due to the Commissioner’s view depends on the degree of regulatory judgment involved (Smithat paragraph 88). Where the Commissioner has already produced an outcome then, given this very wide discretion, 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.

Now that the Commissioner has responded to the compliant and issued a positive outcome, and taking into account the Commissioner’s role as expert regulator in this field and the Commissioner’s very wide discretion as to what and how to investigate, I find that there are no reasonable prospects of the tribunal concluding that the Commissioner had not taken appropriate steps to investigate this complaint.

Having concluded that there are no reasonable prospects of success, I have considered whether I should exercise my discretion to strike the Application out. Taking into account the overriding objective, it is a waste of the time and resources of the Applicant, the tribunal and the Commissioner for this Application to be considered at a final hearing. In my view it is appropriate to strike the Application out.

For those reasons I strike out the Application under rule 8(3)(c).