Hei Fan Wong v The Information Commissioner

NCN: [2026] UKFTT 00701 (GRC) Case Reference: FT/EA/2026/0086/GDPR First-tier Tribunal (General Regulatory Chamber) Information Rights Decided without a hearing Decision given on: 19 May 2026 Before JUDGE HARRIS Between HEI FAN WONG Applicant and THE INFORMATION COMMISSIONER Respondent Decision: The Application is struck out under Rule 8(2)(a) because the Tribunal does not have jurisdiction to deal with it and under Rule 8(3)(c) because there is no reasonable prospect of it succeeding.  REASONS

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 a data controller concerning use of surveillance cameras. The complaint was submitted to the Information Commissioner (“IC”) on 16 October 2025 and was dealt with under reference IC-444729-H7R0.

2. The IC responded to the Applicant’s complaint on 26 February 2026. The IC explained that having considered the information provided in line with the data protection framework, no further action would be taken, but the complaint would be kept on record to support the ICO’s regulatory work. The IC also explained to the Applicant that data protection law allows people to use CCTV at home, subject to them following certain rules to ensure that this is done responsibly. Further, the Applicant was informed that the IC cannot make a person move or reposition their cameras, but links to the IC’s “Home CCTV Guide” and “Additional Support Directory” were provided to assist the Applicant with taking steps to try and address their concerns, including identifying other organisations that may be able to offer them further advice and support. Finally, the IC outlined the Applicant’s options, including their right to request a review of the decision and/or to take proceedings to court.

3. On 26 February 2026, the Applicant requested a review. This was on the basis that in the Applicant’s opinion, the IC’s decision not to undertake a detailed investigation constitutes a failure in his statutory duties under section 165 of the DPA 2018.

4. The IC acknowledges that its letter dated 26 February 2026 did not explain the reasons why the IC was taking no further action in respect of the Applicant’s complaint.

5. Accordingly, the IC reviewed the case and provided the Applicant with reasons for his decision in correspondence dated 9 March 2026. The IC explained that having carefully reviewed all the information which the Applicant had provided, his decision remained unchanged. The IC explained that this was because the Applicant’s concerns appear to relate to an isolated instance; there was no suggestion that the issue extended beyond the Applicant’s case and that there were wider public interest concerns, systemic failings, or a broader pattern of similar behaviour that would warrant a more detailed investigation. The IC also explained that whilst the use of CCTV in shared domestic areas can raise data protection issues, the incident does not clearly align with the IC’s strategic priorities, which focus on areas where the IC’s involvement can have the greatest regulatory impact. As such, no further action would be taken. The IC did, however, remind the Applicant that they could still consider other options, such as taking the case to court. Further, the Applicant was told that they may be able to refer the case to the Parliamentary and Health Service Ombudsman (“PHSO”) if they felt that the IC had not acted properly or fairly. The Application

6. The Applicant applied to the Tribunal by way of form GRC3 dated 26 February 2026. They stated that the outcome they were seeking was as follows: “I seek an order under Section 166 of the Data Protection Act 2018 requiring the Information Commissioner to take appropriate steps to respond to my complaint.”

7. The Applicant gave the following grounds for the Application: “1. Failure to Take Appropriate Steps (Section 166(1)(a)) The Information Commissioner’s Office (ICO) issued an outcome on 26 February 2026 (Ref: IC-444729-H7R0) deciding not to undertake a detailed investigation. I contend this is a failure to take "appropriate steps" to respond to a confirmed infringement of the Transparency Principle (Article 5(1)(a)) and the Right of Access (Article 15). Merely recording a report of covert residential surveillance "for information purposes" does not constitute an adequate regulatory response to a breach of this gravity.

2. Mischaracterization of the Data Controller The Commissioner has procedurally erred by characterizing this matter as a "neighbor dispute." This is a Landlord-Tenant relationship. The landlord is a data controller who has installed covert surveillance (video and audio) within a private residential setting. By applying the "Home CCTV guide" intended for domestic neighbors, the ICO has failed to apply the stricter regulatory standards required for a commercial/contractual data controller monitoring a data subject in their home.

3. Obstruction of Statutory Rights The ICO’s decision suggests that I resolve the matter directly with the landlord. However, the data controller has blocked all forms of communication (including WhatsApp), making it physically and legally impossible for me to exercise my Right of Access independently. The ICO is the only body with the statutory power to compel the controller to provide the necessary transparency information, yet it has refused to use its Article 58 investigative powers.

4. Discriminatory and "Two-Tier" Enforcement I allege that the ICO is engaging in a "two-tier" enforcement approach. While other European supervisory authorities operating under identical GDPR principles have taken decisive action—such as the Belgian Data Protection Authority (GBA) fining a landlord €9,700 in Case DOS-2022-01351 for placing cameras in communal hallways—the UK ICO has refused to even investigate. This inconsistency results in a lower standard of protection for data subjects in the UK and constitutes discriminatory treatment of my complaint.

5. Failure of the Institutional Safety Net Police Scotland have deferred the data security and transparency aspects of this case to the ICO. By the ICO then deferring back to the police, a regulatory vacuum has been created. This "pass-the-parcel" approach between agencies has left me with no legal remedy for an active intrusion into my private life.” The strike-out application

8. The IC applied by way of form GRC5 dated 24 March 2026 to strike out the Application on the basis that the Tribunal has no jurisdiction to consider it under Rule 8(2)(a) and/or that there is no reasonable prospect of it succeeding under Rule 8(3)(c) (the “strike-out application”).

9. The reasons which the IC gave for striking out the application were set out in its Response. In summary, these were as follows:

10. The IC has taken steps with the procedural requirements set out in section 166(1) of the DPA 2018, and there is therefore no basis for the Tribunal to make an order under section 166(2) DPA 2018. The IC noted at paragraph 29 of the Response that “Based on the information set out in Section 5.1 of the Notice of Application, in the Applicant’s view, taking “appropriate steps” constitutes undertaking a detailed investigation.”

11. It is clear that the Applicant disagrees with the outcome provided on their complaint. However, as set out above, section 166 DPA18 does not provide a mechanism by which complainants can challenge the substantive outcome of a complaint. The relief available from the Tribunal on an application under section 166 DPA18 only applies where it is satisfied that the IC has failed in some procedural respect to comply with the requirements of section 166(1) DPA18, limited solely to those orders that are set out in section 166(2).

12. If the Applicant wishes to seek an order of compliance against the controller for any breach of their data protection rights, the correct route for them to do so is by way of separate civil proceedings in the County Court or High Court under section 167 of the DPA18.

13. Judge Taft directed that the Applicant should provide representations in relation to the strike out application by 13 May 2026 under Rule 8(4).

14. The Applicant responded on 30 April 2026, so I am satisfied that the Applicant has had an opportunity to make representations on the proposed striking out under rule 8(4). The points made by the Applicant, in summary, were as follows: a. The IC has failed to take “appropriate steps” to respond to the complaint because: • “Despite a audio admission of 10 years of and WhatsApp text admission to have conducted covert surveillance (voyeurism) by the data controller, the IC has refused to ask a single question of me or the data controller. This is a failure to take the "appropriate steps" required to respond to a complaint. “ • “The data controller has not paid the mandatory £400 data protection registration fee. The IC is aware of this but has failed to take steps to enforce this or investigate why an unregistered entity is processing sensitive residential data” • “The IC has ignored material evidence regarding a lack of consent and the absence of any signage for surveillance. By refusing to investigate these fundamental breaches, the IC has failed to provide a meaningful “outcome” or “progress as required by section 166(1)”. b. The Applicant disagrees that the case has no prospect of success. They comment “There is a high-profile, admitted breach (as reported in [media]). The IC’s total refusal to engage with the evidence constitutes a clear procedural failure that the Tribunal has the power to remedy by ordering the IC to take “specified steps” or “conclude an investigation”. Legal framework

15. 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.”

16. 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.

17. 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 complaint includes— (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.”

18. 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."

19. 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…”.

20. 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).

21. 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 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.” (paragraph 33).

22. 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.”

23. 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

24. The first question is whether the IC provided an outcome to the Applicant’s complaint. The IC provided the Applicant with a response to their complaint on 26 February 2026 with a further response after review on 9 March 2026. I consider that the response dated 26 February 2026 was in fact an outcome to the complaint, because 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.

25. Even if I am wrong on this, I am satisfied that when taken together with the response dated 9 March 2026, 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.

26. 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. The extent of any investigation is a matter of discretion for the IC, as explained in the case law set out above.

27. The outcome sought by the Applicant is, 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. Its powers are limited to ordering the IC to progress its handling of the Applicant’s complaint. I also agree with the IC’s position that orders for compliance need to be sought through civil action. Accordingly, I find that the Tribunal does not have the power to grant the outcomes sought, because what the Applicant considers to be appropriate steps, such as enforcing non-payment by a data controller would involve the making of orders in respect of which the Tribunal does not have power.

28. 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 section 166 only allows orders to the IC to progress its handling of a complaint, and I find there are no exceptional circumstances which would support such an order as being appropriate when that process is concluded.

29. 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)(c) because there is no reasonable prospect of them succeeding.