Giovanni Wallace v The Information Commissioner

Background & Chronology

1. On 5th December 2024, the Applicant submitted a complaint to the Information Commissioner (“the Commissioner”) about Plymouth City Council (“PCC”) and the processing of his personal data. The Applicant summarised his complaint as being about “An organisation send[ing] my information to someone when they shouldn’t have.”. He alleged that PCC breached the UK General Data Protection Regulation (“UK GDPR”) when one of PCC’s debt collection agencies tried to contact his stepson in relation to council tax arrears by sending post for his stepson to his (the Applicant’s) address. He stated that his stepson had never lived at his address, and following his eviction from an address in Plymouth, he had been relocated by Devon County Council to an address in Exeter. The Applicant states that PCC obtained his address from his stepson’s former landlord, to whom the Applicant had provided his home address to enable the landlord to “forward correspondence related to the tenancy debt, not as a residential address for” his stepson. The Applicant stated that PCC’s use of his address for this purpose breached the UK GDPR.

2. An outcome to the complaint was sent to the Applicant by the Commissioner on 18th March 2025. The outcome provided the following conclusion: “We have considered the information available in relation to this complaint. We are of the view that an infringement of Plymouth City Council [sic] Data Protection obligations has not taken place. This is because the council have relied upon the lawful basis of Contract (Tenancy Agreement) and legitimate interest in order to gain information from the previous Landlord regarding your son Harrison’s debt. Furthermore if only an address was provided this would not be considered as personal data on its own. On a separate note we would also recommend that any post that you receive in future which is addressed [sic] your son is only accessed by him as it is his personal data.”

3. Following that outcome being received, the Applicant requested a case review on the following grounds: i) That the case officer had misinterpreted the concept of “personal data” within the meaning of the UK GDPR, and that addresses which are linked, even indirectly, to identifiable living persons constitute personal data. ii) That the case officer’s acceptance of PCC’s reliance on “Contract” as a lawful basis was flawed, and that the Commissioner had “failed to assess the essential proportionality and necessity tests” in relation to any legitimate interest, as required by Article 6(1)(f) of the UK GDPR. iii) That the case officer had given incorrect and patronising advice in relation to opening his stepson’s post; he had his stepson’s “explicit permission” to open his post.

4. On 20th March 2025, the case officer acknowledged the request for a case review and advised that a reviewing officer would be in contact with the Applicant within the next thirty days. Having considered the complaint and the information available to him, the reviewing officer issued a review outcome to the Applicant on 9th April 2025. The result of that review was communicated as follows: “I’ve considered the points you raised, and also reviewed the relevant information we hold about your case. In this case [the case officer] explained the reasons for her view in her email dated 18 March 2024. I’m satisfied that [the case officer] dealt with your complaint appropriately and in line with our case handling procedures. As such this is not something we intend to pursue further. Whilst I note you dispute the lawful bases [the case officer] identified PCC as using for processing personal data, it’s my view that, as PCC are pursuing a debt, ‘Contract’ is potentially a valid lawful basis, even if the tenancy agreement ended. You also dispute [the case officer’s] comment that, if only an address was provided this would not be considered as personal data on its own. It’s my view that, in the context in which the address was exchanged, it is likely that it would be considered ‘personal data’, as defined by UK GDPR. You also objected to [the case officer’s] advice that any post that you receive in future which is addressed to your son is only accessed by him. It’s my view that [the case officer’s] advice is correct. However, I note that you had your son’s explicit permission.”

5. It is evident from this outcome that the reviewing officer agreed with the Applicant that his address did constitute personal data in this instance, and they acknowledged that the Applicant had permission to open his stepson’s post. However, the reviewing officer’s considered view was that “contract” was potentially a valid lawful basis for processing the Applicant’s data, and it was additionally communicated in that correspondence that “A case review is the final stage of the ICO’s handling process which means that we won’t consider this complaint further.”. The Appeal

6. The Applicant submitted his application under section 166 of the Data Protection Act 2018 to the Tribunal on 30th April 2025. The Applicant states that the Commissioner has “failed to take appropriate action in response to a data protection complaint I submitted”, and he submits the following: i) That the Commissioner’s decision was legally flawed, factually inaccurate, and contradicted by its own established case law. ii) That the Commissioner initially dismissed the complaint, stating incorrectly that an address alone does not constitute personal data. When this decision was reviewed, the reviewing officer stated that it was the Commissioner’s own position that the address did not constitute personal data, and implying that he had argued otherwise. This meant that the Commissioner avoided acknowledging his own legal error. iii) That the decision failed to consider that the Applicant had no legal relationship to the data subject ([his] son), and that there was no legal basis for the Applicant’s data to be used. iv) That the decision failed to consider that PCC had access to more reliable and lawful means of verifying his son’s address through official care networks. v) That the decision failed to consider that a debt collection agency confirmed to the Applicant that they had received his address directly from PCC.

7. In seeking an Order under section 166 of the Data Protection Act 2018, the Applicant states that he wishes the Tribunal to direct the Commissioner to take appropriate action in response to his complaint. Specifically, he wishes the Tribunal to: i) Re-open and consider [his] original complaint about PCC’s unlawful processing of his personal data. ii) Correct the legal and factual inaccuracies in the Commissioner’s prior decisions, which include: (a) the misstatement that an address alone is not personal data (contrary to UK GDPR and the Commissioner’s own published guidance), (b) the reversal of positions in the review process, where the Applicant’s legal argument was misattributed to the Commissioner’s case officer. iii) Investigate the misuse of the Applicant’s address by PCC, particularly in light of their access to more reliable data through their care obligations and networks. The Response

8. In his response to the application, dated 27th August 2025, the Commissioner submits the following: (i) That an outcome to the Applicant’s complaint has been provided. (ii) That the Commissioner has taken steps to comply with the procedural requirements set out in section 166(1) of the Data Protection Act 2018, and that there is therefore no basis for the Tribunal to make an Order under section 166(2). (iii) That the Tribunal has no jurisdiction to consider the Applicant’s application and/or that the Applicant’s application has no prospect of success. (iv) That the application should be struck out under either Rule 8(2)(a) and/or Rule 8(3)(c) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. Applications under section 166 DPA 2018

9. Section 165 DPA 2018 stipulates that a data subject has a right to make a complaint to the Commissioner if they consider that the processing of personal data relating to them infringes the UK General Data Protection Regulations (“UKGDPR”), and/or Parts 3 or 4 of the Data Protection Act 2018. Sections 165(1) and (2) provide as follows: “165(1) Articles 57(1)(f) and (2) and 77 of the UK GDPR (data subject’s right to lodge a complaint) confer rights on data subjects to complain to the Commissioner if the data subject considers that, in connection with personal data relating to him or her, there is an infringement of the UK GDPR. (2) A data subject may make a complaint to the Commissioner if the data subject considers that, in connection with personal data relating to him or her, there is an infringement of Part 3 or 4 of this Act.”

10. Once it is established that an individual’s complaint falls within either section 165(1) or 165(2), then sections 165(3)-(5) set out what action the Commissioner must take in terms of the administration of the complaints process.

11. Section 166 of the DPA 2018 deals specifically with failures on the part of the Commissioner to progress and respond to the complaint as required by section

165. A data subject may, in the particular circumstances detailed within section 166(1), apply to the Tribunal for an order requiring the Commissioner to take appropriate steps to respond to the complaint (s.166(2)(a)) or to inform the complainant of the progress of the complaint, or of the outcome of a complaint, within a period specified by the order (s.116(2)(b)).

12. Section 166 DPA 2018 reads as follows: “166(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. (3) An order under subsection (2)(a) may require the Commissioner– (a) to take steps specified in the order; (b) to conclude an investigation, or take a specified step, within a period specified in the order.”

13. As is made clear from these provisions, the Tribunal may only exercise its powers under section 166(2) if one of the three conditions cited within section 166(1) exist. There have been a number of appeal decisions which have considered the scope of section 166, and it is well 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 as follows:

14. In Killock v Information Commissioner [2021] UKUT 299 (AAC), The Upper Tribunal stated 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 s.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 s.166 towards a decision on the merits of the complaint must be firmly resisted by Tribunals.”

15. In the High Court in R (Delo) v Information Commissioner [2022] EWHC 3046 (Asmin), Mostyn J, at paragraph 57, commented upon the handling of complaints by the Commissioner as follows: “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.”

16. Mostyn J’s decision in Delo was upheld by the Court of Appeal ([2023] EWCA Civ 1141), with Warby LJ, commenting as follows at paragraph 80: “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.”

17. The decision of the Upper Tribunal in Cortes v Information Commissioner (UA-2023-001298-GDPA), which applied both Killock and Delo in confirming that the nature of section 166 is that of a limited procedural provision only. Judge Wikeley commented at paragraph 33 as follows: “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). It will do so in the context of securing the progress of the complaint in question” (Killock and Veale, paragraph 87). 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.”

18. More recently, the Upper Tribunal decision in 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.”

19. In considering whether any further ‘appropriate steps’ need to be taken by the Commissioner, the Tribunal must give weight to the views of the Commissioner as an expert regulator. This requirement is identified in Killock at paragraph 85, which is 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.” Tribunal’s powers to strike out the proceedings for lack of jurisdiction

20. The Tribunal must strike out the proceedings where there is no jurisdiction to determine the matters before it. Rule 8(2) reads as follows: “8(2) The Tribunal must strike out the whole or part of the proceedings if the Tribunal– (a) Does not have jurisdiction in relation to the proceedings or that part of them; and (b) 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.” Tribunal’s power to strike out the proceedings where no reasonable prospect of success

21. The Tribunal may strike out the proceedings where the Tribunal considers there is no reasonable prospect of the case succeeding. Rule 8(3)(c) provides: “8(3) The Tribunal may strike out the whole or part of the proceedings if– … (c) the Tribunal considers there is no reasonable prospect of the appellant’s case, or part of it succeeding.” Evidence

22. The Tribunal had been provided with a number of documents in advance of the hearing, including a Hearing Bundle of 196 pages, an Authorities Bundle of 153 pages, and the Commissioner’s skeleton Argument of 11 pages. The Hearing

23. An oral hearing took place by Cloud Video Platform on 4th February 2026, and both parties confirmed that they had received the documents referred to at paragraph 24 above. However, the Applicant stated that he was unable to open the bundle on the computer he was using at the time of the hearing, as the device he was using on this occasion did not appear to have suitable software installed which would enable him to open the PDF bundle. He was given an opportunity to install suitable software or find an alternative method of viewing the bundle, but he declined this opportunity and stated that he was content to proceed. He confirmed that he had read all of the documents which the Tribunal had been provided with.

24. A summary of both the written and oral submissions advanced on behalf of the Commissioner is provided below: Oral and written submissions advanced on behalf of the Commissioner (i) That there was an outcome to the Applicant’s complaint under section 165(1) DPA 2018 and the Tribunal should reject the applicant’s invitation to wind back the clock. As Warby LJ explained in R (on the application of Delo) v Information Commissioner [2023] EWCA Civ 1141, [2024] 1 WLR 263 (“Delo (CA)), “An “outcome” must be the end point of the Commissioner’s “handling” of a complaint ([64]). (ii) That there was a review of the outcome provided on 18th March 2025 and the decision was upheld, save for the reviewing officer concluding, in agreement with the Applicant, that his address was ‘personal data’ for the purposes of Article 4 of the UK GDPR and section 3(2) of the Data Protection Act 2018. (iii) That although the Applicant seeks to present his application as a procedural challenge, it is, in substance, a challenge to the outcome provided. The Applicant himself makes this clear in section 5.1 of his GRC3 form when he states “The ICO’s decision was legally flawed, factually inaccurate, and contradicted by its own established case law and guidance.”. These are essentially grounds of judicial review, as the Applicant submits that the outcome should be quashed because of errors of law and material errors of fact. (iv) That the order(s) being sought by the Applicant are not within the power of the Tribunal to grant, and that if the Applicant wishes to challenge the outcome to his complaint, whether on grounds of legal or factual errors or the decision-making process leading to it, the Applicant should apply for judicial review of the outcome. The High Court is the appropriate forum for the challenge being made by this application, not the First-tier Tribunal. (v) It is open to the Applicant to seek compensation from the data controller as an alternative to seeking an order for judicial review. (vi) That the application should be dismissed or alternatively it should be struck out under Rule 8(2) or Rule 8(3)(c).

25. A summary of the Applicant’s written and oral submissions is detailed below: Oral and written submissions advanced by the Applicant i) There were procedural failings in the Commissioner’s dealings with the Applicant’s complaint, as the case officer who responded to his complaint did not consider that his address constituted personal data, but then the reviewing officer agreed with the Applicant that it was. This has identified a training issue at the Commissioner’s office. ii) The Applicant wanted the Commissioner to investigate why his personal data (his address) was processed in the manner it was by giving it to a debt collector. iii) That there was never any contract between PCC and the Applicant, and the Commissioner should not have relied upon the existence of a contract as a lawful basis for the processing of his personal data. iv) That the Commissioner’s response did not identify or assess any lawful basis correctly under Article 6(1)(f) of the UK GDPR. v) That the Commissioner did not state whether PCC had complied with Article 14 of the UK GDPR, having obtained his address from his son’s previous landlord. vi) That the Commissioner did not confirm whether PCC complied with the Memorandum of Understanding that exists between local authorities and the Department for Work and Pensions. vii) That PCC could have sought his son’s address by other means. Devon County Council would have held his son’s new address, and there was no need to give the debt agency the Applicant’s address, particularly when his son has never lived at his current address. viii) That the Applicant is not seeking compensation for any data breach, but he is simply seeking a proper review of his complaint, applying the law correctly. ix) That he wants the Commissioner to recognise that the investigation into his complaint was wrong. Discussion and Conclusions

26. There had been some confusion as to the position adopted by the Commissioner following the review of the outcome decision of 18th March 2025. The Applicant had taken issue with the reviewing officer having seemingly adopted the Applicant’s view in relation to the question of whether or not his address constituted personal data, thereby demonstrating that the original case officer had made an error in determining that it was not personal data. In expressing his view that it was likely that the Applicant’s address “would be considered ‘personal data’, as defined by UK GDPR”, it does not appear to the panel that the reviewing officer was seeking to take the credit in some way for reaching this view, but he was simply stating that this was likely to be the correct position. The reviewing officer therefore decided against the original case officer in that respect. However, in stating that “as PCC are pursuing a debt, ‘Contract’ is potentially a valid lawful basis, even if the tenancy ended”, the reviewing officer did not take a contrary view to the case officer, nor did he express any disagreement with the case officer’s conclusion that PCC were additionally relying upon a ‘legitimate interest’ as a lawful basis for the processing of the Applicant’s data. The Applicant has taken issue with the fact that this potential lawful basis was not examined by the Commissioner in any great depth when providing him with the outcome to his complaint, but it was nonetheless an outcome, albeit not the outcome which the Applicant had hoped for. As was made clear in R (Delo) v Information Commissioner [2022] EWHC 3046 (Admin) by Mostyn J, the treatment of a complaint by the Commissioner remains with the Commissioner, and he decides the scale of any investigation or whether any conclusive determinations are to be reached. Indeed, the Commissioner is not required to make such a determination. This view was shared in R (Delo) v Information Commissioner ([2023] EWCA Civ 1141, where the Court of Appeal went on to state that it would be unnecessary for the Commissioner to determine whether there has been any infringement, and it would be sufficient for the Commissioner to simply reach and express a view about the likelihood of this being so and take no further action. The Court of Appeal went on to state the Commissioner would discharge his duty under section 165 DPA 2018 to inform a complainant of the outcome to their complaint.

27. The Tribunal is tasked with identifying any appropriate steps for the Commissioner to respond to a complaint, and not with assessing the appropriateness of a response that has already been given. The proper challenge to a decision of the Commissioner in this respect would be by way of judicial review. In the circumstances of this matter, we consider that the Applicant is seeking to challenge the substance of the Commissioner’s decision, and this is perhaps best illustrated by his submitted GRC3 form, which avers that the Commissioner’s decision was “legally flawed, factually inaccurate, and contradicted by its own established case law and guidance.” This is a challenge to the rationality of the Commissioner’s decision, and the outcomes being sought by the Applicant are, in substance, an invitation to the Tribunal to reconsider the merits of his complaint and the outcome reached. As was recently stated in Dr Michael Guy Smith v Information Commissioner [2025] UKUT 74 (AAC), “…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”. Having regard to all of the evidence submitted and the oral arguments advanced by both parties, the Tribunal concludes that it has no power to reconsider the merits of the Commissioner’s outcome or to overturn that decision.

28. Whilst the Tribunal’s hands are tied, the panel recognises that having a debt collector turn up at the Applicant’s doorstep in connection with his son’s affairs would undoubtedly have been a distressing experience. Nevertheless, the correct arena for contesting these matters lies in a claim against the data controller or, in relation to any challenge against the Commissioner’s assessment of the complaint, by way of judicial review in the High Court.

29. The application is struck out under Rule 8(2) as the Tribunal lacks jurisdiction in relation to the proceedings. Signed:Date: James Armstrong-Holmes5th February 2026