Amanda Barrow v The Information Commissioner

Introduction

1. The Appellant seeks an order under section 166(2) of the Data Protection Act 2018 (DPA 2018) requiring the Information Commissioner (the Commissioner) to undertake a substantive investigation and take appropriate steps to respond to her complaint concerning Leeds Beckett University’s sharing of her health data with an Occupational Health provider.

2. In his response to the application, the Commissioner invites the appellant to withdraw her appeal on the basis that there has now been an outcome, update and a promised further updated provided and submits that should the appellant not withdraw, the appeal has no reasonable prospects of succeeding and accordingly, should be struck out.

3. The Appellant opposes the strike out and seeks an order from the Tribunal directing the Commissioner to undertake a full and appropriate investigation into her complaint. The Appellant sets out the steps which she deems to be appropriate for the Commissioner to take. Legal Framework

4. Under Rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal)(General Regulatory Chamber) Rules 2009, the Tribunal may strike out the whole or part of the proceedings if the Tribunal considers it does not have jurisdiction in relation to the proceedings or that part of them; and 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.

5. Under Rule 8(3)(c) of the Rules, the Tribunal may strike out the whole or part of the proceedings if the Tribunal considers there is no reasonable prospect of the applicant’s case, or part of it, succeeding.

6. Section 165 DPA sets out the right of data subjects to complain to the Commissioner about infringement of their rights under the data protection legislation. Under section 166 DPA a data subject can make an application to this Tribunal for an order as follows: 166 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.

7. 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. Some key decisions are: a. Scranage v Information Commissioner [2020] UKUT 196 (AAC) , paragraph 6 - "In my experience – both in the present appeal and in many other cases – there is a widespread misunderstanding about the reach of section 166 . Contrary to many data subjects’ expectations, it does not provide a right of appeal against the substantive outcome of the Information Commissioner’s investigation on its merits. Thus, section 166(1) , which sets out the circumstances in which an application can be made to the Tribunal is procedural rather than substantive in its focus." (emphasis in original). b. Killock v Information Commissioner [2022] 1 WLR 2241 , Upper Tribunal 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 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 ." Background

8. The factual background to this case is succinctly set out at [24] to [31] of the Commissioner’s response dated 10 October 2025:

24. On 12 November 2024, the Applicant made a complaint against Leeds Beckett University (“the University”) for sharing her sensitive personal data without her consent.

25. On 8 February 2025, the Applicant submitted a complaint to the Commissioner about 9 (“the University”) engaging with an Occupation Health Provider and without consent shared the Applicant’s health data and that she does not consider this to be transparent. [Pages 1-45].

26. On 19 February 2025, the Applicant sent a chaser email to the Commissioner’s Public Advice Data Protection Complaints Services team requesting an update.

27. On 20 February 2025, the Commissioner’s Public Advice & Data Protection Complaints Service team responded to the Applicant providing an estimated timescale as to when they hope to be able to allocate her case. The team explained that the case was received on 8 February 2025 and at that time was working on cases received at the beginning of November 2024, and it was hopeful that her case would be allocated in about three months’ time.

28. On 1 July 2025, the Applicant sent a chaser email to the Commissioner’s Public Advice Data Protection Complaints Services team requesting an update.

29. On 10 September 2025, the case officer issued an apology for the delay and communicated the outcome to her complaint [Pages 46-48]. The case officer explained that based on the information available she found that the University had addressed her concerns, as outlined in its correspondence dated 3 December 2024. The University confirmed that it had consulted its Occupational Health team regarding the processing and sharing of the Applicant’s personal data, and provided multiple links to the “colleague privacy notice”. It further clarified that consent was not the legal basis for processing; rather, it relied on ‘Article 6 (1c) Processing is necessary for compliance with a legal obligation to which the controller is subject (employment law, health, and safety in the workplace) and Article 9 (b) Employment, social security, and social protection (if authorised by law)’. The case officer considered this response to be compliant with data protection obligations and that the relevant information had been available to the Applicant.

30. On 21 September 2025, the Applicant responded to the case officer disputing the outcome. She explained that her complaint was “that under ‘Regulation (EU) 2016/679 of the European Parliament and of the Council Article 28 (3) the controller has to have a 10 contract with the data processor at the time of sharing my data in order to do so” and that the Commissioner should investigate this aspect of her complaint [Pages 45-51].

31. On the 9 October 2025, the case officer contacted the University and requested confirmation of the dates on which the Applicant’s personal data was transferred to the Occupational health provider, along with evidence of a contract or data sharing agreement in place with the provider at that time. An update was issued to the Applicant on the same date, with the case officer explaining that she would provide a further update when she had received the University’s response [Pages 52-54]. Conclusions

9. I find that the Commissioner has provided an outcome to the complaint on 10 September 2025 and a further update regarding the progress of enquiries with the University on 9 October 2025. The Commissioner has also confirmed that a further update/outcome will be provided to the appellant no later than 3 months from the date of his response (10 October 2025).

10. Contrary to the expectations of many Appellants, section 166 does not provide a right of appeal against the substantive outcome of the Commissioner’s investigation on its merits. The Tribunal is bound to take into consideration and give weight to the views of the Commissioner, as described by the Chamber President in Barbara Rogers v ICO EA/2021/0348: ’14…In the sphere of complaints, the Commissioner has the institutional competence and is in the best position to decide what investigations he should undertake into any particular issue, and how he should conduct those investigations. This will be informed not only by the nature of the complaint itself but also by a range of other factors such as his own registry priorities, other investigations in the same subject area and his judgement on how to deploy his limited resources most effectively: Killock & Ors v Information Commissioner [2021] UKUT 299 . The obligation of the Commissioner is to take appropriate steps to respond to the complaint’.

11. The Appellant’s response to the strike out declines the invitation to withdraw the appeal and requests that the Tribunal order the Commissioner to undertake a substantive investigation in response to the complaint. It is clear that the Appellant is challenging the substantive outcome of the complaint to the Commissioner. The Tribunal does not have the power under section 166 to consider the merits or substantive outcome of a complaint.

12. Section 166 is limited to procedural issues . The Commissioner took steps to investigate and respond to the complaint. It provided an outcome to the complaint and a reviewed outcome. For these reasons, I find that the Commissioner has not failed to comply with the procedural requirements set out in section 166(1) of the DPA. I therefore find that there is no reasonable prospect of the appeal or any part of it, succeeding. The proceedings are therefore struck out. Signed: Judge Peri Mornington Date: 10 November 2025 Amended under the slip rule on 17 December 2025