Mark Baker v The Information Commissioner

1. The hearing, by the cloud video platform ("CVP"), on 30 January 2026 was listed to hear the Applicant's application (which here is referred to as a request) that the striking out of the Application on 10 February 2025 ("the 2025 strike-out") be set aside or appealed and for a stay. This is opposed by the Respondent ("the IC").

2. A preliminary issue arose because by letter dated 20 January 2026 (and its enclosures) the Applicant said that an in-person (and not CVP) hearing was necessary and if the CVP hearing went ahead the Applicant would not be able to attend. The IC opposed the request for an in-person hearing and an adjournment. Having heard the IC's submissions there was a short break to allow time for the issues to be considered. On restarting the hearing the IC was notified that this request was refused for the reasons set out below.

3. The hearing then proceeded to deal with the Applicant's request to set aside the 2025 strike-out itself. That request was also refused for the reasons set out below.

4. I recognise that notwithstanding the Senior President of Tribunals Practice Direction of the 4 June 2024 these reasons are detailed and lengthy. This is because I considered the amount of content necessary to deal with the request, the lengthy procedure and to ensure the Applicant, who did not attend the remote hearing, is aware of the outcome in detail. Matters considered

5. I heard from counsel for the IC and had the Applicant's letter and enclosures of 20 January 2026. I also had other items in particular:- (a) the IC's updated skeleton dated 19 January 2026. (b) a 276 pdf page authorities bundle. (c) a 241 pdf page bundle and an additional bundle. (d) a copy of the Applicant's Application dated 15 May 2023. (e) the IC's response of 13 September 2024 and form GRC5 of the same date seeking the strike-out of the Application. (f) the Applicant's response to the strike-out application dated 7 September 2024. (g) case management directions ("CMD") made by Judge Foss of 13 December 2024. (h) the 2025 strike-out. (i) the Applicant's letter of request dated 17 March 2024 (but in fact 2025) that the 2025 strike-out be "appealed and or in addition set aside and a stay put on proceedings " (j) various CMD. Summary of the Background

6. On 10 December 2017, by section 165(2) Data Protection Act 2018 ("DPA18"), the Applicant complained to the IC about The London Borough of Bexley ("the Council") about issues that went back to 2013 ("the 2017 Complaint").

7. The relevant parts of section 165 DPA18 provide as follows:- (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. (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 [F2a] foreign designated authority is necessary.

8. By section 166 DPA18 if a complainant is of the view that the IC has not done the things required and listed in section 166(1) DPA18, they may apply to the Tribunal which may by section 166(2) DPA18 require the IC:- "(a) to take appropriate steps to respond to the complaint, or (b) inform the complainant of progress on the complaint, or of the outcome of the complaint, within a period specified in the order."

9. I agree with the IC's legal submissions and references to the legal authorities in the skeleton on the relevant parts of DPA18, the extent and nature of the IC's duty after a complaint is made and the extent of the Tribunal's jurisdiction. I add only that the Upper Tribunal in Killock & Veale & others v Information Commissioner [2021] UKUT 299 (AAC) also said (173AB)"84. There is nothing in the statutory language to suggest that the question of what amounts to an appropriate step is determined by the opinion of Commissioner…In determining whether a step is appropriate, the Tribunal will decide the question of appropriateness for itself. "

10. The IC says that the 2017 Complaint (which had case reference RFA0716575) was progressed to the extent required and an outcome provided to the Applicant on 12 March 2019 as provided for by section 165(4) DPA18. The IC explained its role and what they had done. In summary the outcome was that the Council had complied with its data protection obligation and no further action was planned by the IC.

11. Thereafter the Applicant requested a case review. On 5 April 2019 the IC wrote to the Applicant about the review with a new case reference RCC0835131. A case review outcome, undertaken by a team manager, was provided on 15 May 2019. This maintained the original outcome. It also explained the role of the IC in DPA18 complaints and said that if dissatisfied court proceedings could be issued and/or a complaint made to the PHSO. The letter added "A case review is the final stage of the ICO’s casework process and we will not revisit the matter again." The Applicant was not satisfied with the outcome.

12. When this Application was commenced it was said to relate to the IC's letter to the Applicant of 20 April 2023 with reference IC-225593-Q3X3 sent in response to a letter from the Applicant to the IC of 17 March 2023. The IC says (and I agree) that (a) the 17 March 2023 letter was not part of a complaint as defined by section 165(2) DPA18 and (b) therefore the IC cannot have failed in one of the ways set out in section 166(1) DPA18 and (c) consequently section 166(2) DPA cannot apply and so (d) the Tribunal has no jurisdiction. On 13 September 2024 the IC responded to the Application. The 2025 strike-out

13. By a form GRC5 also of 13 September 2024 the IC asked the Tribunal to strike out the Application pursuant to Rules 8(2)(a) and/or 8(3)(c) 2009 Rules for the reasons set out in the response. The Applicant responded on 17 September 2024 opposing the strike out request.

14. Rule 8(2)(a) 2009 Rules provides that unless rule 5(3)(k)(i) 2009 Rules applies."The Tribunal must strike out the whole or a part of the proceedings if the Tribunal does not have jurisdiction in relation to the proceedings or that part of them". Rule 8(3)(c) 2009 Rules provides that "The Tribunal may strike out the whole or a part of the proceedings if (c) the Tribunal considers there is no reasonable prospect of the appellant's case, or part of it, succeeding."

15. On 10 February 2025 Judge Moan struck out this Application pursuant to both rule 8(2)(a) and 8(3)(c)2009 Rules. Having reviewed the material available I agree with the Judge who said (in summary):- "…The 17th March 2023 letter was not a section 165 Data Protection Act 2018 complaint, i.e. it did not complain about a data infringement, but rather the letter made accusations of a cover up regarding a previous complaint….and the letter dated 20th April 2023 was not an outcome letter but a response to further correspondence post-investigation. There was no ongoing complaint or investigation…The application made by the Applicant is misconceived…Regardless of whether he may legitimately have concerns or criticisms about the way in which his data was handled or concerns about the way in which the investigation into his complaint was dealt with by the Respondent, the Tribunal has no power to look into either of those concerns….There is no decision made on 20th April 2024 to appeal against and no power for the Tribunal to overturn/re-evaluate the outcome decision of the Respondent in any event….Where the Tribunal has no jurisdiction to deal with an application, it must strike the application out. The Tribunal has not discretion… The Applicant may have remedies elsewhere but not before this Tribunal. The application is stuck out…" Applicant's request for the 2025 strike- out to be appealed or set aside

16. By a letter dated "17.03.2024" (but in fact it must have been in 2025 because it refers to what happened on 10 February 2025) received by the Tribunal on 4 April 2025 the Appellant made a request that the 2025 strike-out be"appealed and or in addition set aside and a stay put on proceedings." Additional submissions were made in a further letter dated 18 June 2025 and in the letter of 20 January 2026 the Applicant says that this case "must be reinstated…"

17. The Applicant is a Litigant in Person ("LiP") and I have kept in mind the Equal Treatment Bench Book's relevant guidance and the need to avoid unnecessary formality and seek flexibility in the proceedings focusing on the substance not the form of this request. On that basis it is, in my view probable, that this is not intended to be an application for permission to appeal to the Upper Tribunal (rule 42) or a request for a review (rule 44) or for a correction (rule 40). I have proceeded on the basis that was most likely intended to be a request that the 2025 strike-out be set aside pursuant to rule 41 2009 Rules. Counsel for the IC shared this view. I also note that in any event rule 45 2009 Rules states that "The Tribunal may treat an application for a decision to be corrected, set aside or reviewed, or for permission to appeal against a decision, as an application for any other one of those things."

18. On 12 September 2025 notice of a CVP hearing, set for 2 December 2025, was sent to the parties. On 1 December 2025 the hearing was vacated. The reasons for this were set out by Judge Saward. The CMD of 1 December 2025 ordered as follows:- (1) The hearing listed for 2 December 2025 is vacated. (2) Subject to any decision on direction (3) stating otherwise, the hearing is re-listed for 30 January 2026 at 10am by online video. Separate notice of hearing will follow with joining instructions. If the Applicant requires assistance with joining the online video hearing, he should contact the Tribunal administration to discuss the options available within 21 days of the date of issue of these directions. (3) Any application for an in-person hearing instead must be made on form GRC5 with full reasons and received by the Tribunal within 21 days of the date of issue of these directions. (4) The Applicant must within 21 days of the date of issue of these directions, provide the Tribunal with an alternative means of contact other than post (e.g. telephone number or email address).

19. In the reasons the Judge added:- "3. This is a long outstanding application. Out of fairness to both parties, it should proceed to hearing at the earliest opportunity. A revised date for hearing has been provisionally listed to take place by online video. It is possible for the Applicant to join by telephone if he so wishes. The Tribunal administration can provide guidance on how to do this if it would be helpful. Alternatively, it is possible that arrangements may, if necessary, be made for the Applicant to attend a local court or tribunal centre to facilitate his participation in the hearing by computer. In either scenario, the Applicant should contact the Tribunal without delay to discuss these options.

4. It is understood that the Applicant may wish to apply for an in-person hearing. Any such application must be made on form GRC5 giving full reasons, so that the application may be considered. To avoid further delay, a timescale is imposed for the submission of the application.

5. To ensure that reliance is not placed solely on postal communications, the Tribunal needs to have an alternative means of communicating with the Applicant, such as a telephone number or email address. This will help ensure that communications are received.

6. The Applicant is placed on notice that under rule 36 of the Tribunal’s 2009 procedure rules, if a party fails to attend a hearing, the Tribunal may proceed in their absence if: (a) satisfied that the party has been notified of the hearing or reasonable steps have been taken to give notification; and (b) it considers it in the interests of justice to proceed with the hearing."

20. The CVP hearing was relisted for 30 January 2026. Notice of this was sent to the parties on 18 December 2025 with the CVP log in details. Request for an in-person hearing and the need for an adjournment

21. Notwithstanding the CMD of 1 December 2025 as far as I am aware no GRC5 has been received from the Applicant, there has been no investigation with the Tribunal of other means of taking part in this hearing remotely and it does not appear that the Applicant has provided an alternative means of contact.

22. However by letter dated 20 January 2026 (which I accept in the place of a GRC5) the Applicant wrote to the Tribunal and said (amongst other things) that he could not attend the hearing on 30 January 2026 by CVP because the Applicant does not have the equipment, skills or knowledge to access CVP. He also said for example (emphases removed) that an in-person hearing is needed "so that some of this stated evidence available can be viewed by a Tribunal Judge in Person " and because "the so called information commissioners office need to answer at an in person Tribunal hearing…"and "…because evidence is either being deliberately withheld and or deliberately ignored."

23. I therefore considered whether to proceed with the Applicant's hearing in the absence of the Applicant or adjourn the hearing and whether to give directions for an in-person hearing in light of the above, the overriding objective in rule 2 Rules 2009 and rule 36 2009 Rules which provides that:- "36. If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal— (a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and (b) considers that it is in the interests of justice to proceed with the hearing."

24. The IC opposed this request and referred to the terms of the 1 December 2025 CMD the underlying merits and the lengthy procedural history.

25. From the Applicant's letter to the Tribunal of 20 January 2026 I am satisfied that the Applicant was aware of the date and time set for this hearing.

26. Bearing in mind the provisions of rule 41 2009 Rules the request to set aside the 2025 strike-out is, in my view, a matter that is very capable of being dealt with remotely and without the need for an in-person listing. I do not accept what the Applicant says, for example, about an in-person hearing being needed to determine the live issue due to the amount of documents that need to be shown to a Judge or there being a need for the IC to answer at an in-person hearing. However I do accept that the Applicant is personally unable to access the CVP system due to the unavailability of the relevant necessary equipment and lack of knowledge and ability of how to access and use such a system. In light of this I have also considered:- (a) the Applicant's status as a LiP. (b) the Equal Treatment Bench Book's guidance which advises the Tribunal not to assume access to technology and the internet but says " It is ultimately a balancing exercise for the judge as to whether or not a particular hearing should proceed remotely, but it is very important to listen to the views of the parties and their representatives." (c) the need to ensure that a party's access to and ability to take part in Tribunal proceedings is not prevented by digital exclusion.

27. I have also considered the overriding objective to deal with cases fairly and justly. I have noted the need to:- (a) deal with the case in ways which are proportionate to its importance, the complexity of the issues, the anticipated costs and the resources of the parties and I recognize that a further adjournment and move to an in-person venue will be with further additional costs for all concerned. (b) avoid delay, so far as compatible with the proper consideration of the issues noting that the IC's involvement has been on-going since 2017, the Application started in May 2023 and was struck out nearly 12 months ago on 10 February 2025.

28. The overriding objective also seeks to ensure that so far as is practicable, the parties are able to participate fully in the proceedings. Although I accept that the Applicant cannot access CVP I note the CMD of 1 December 2025 sought both to assist the Applicant and avoid this issue by:- (a) ordering that if the Applicant required assistance with joining the CVP hearingthe Applicantshould contact the Tribunal administration "to discuss the options available within 21 days of the date of issue of these directions." (b) referring to the possibility" for the Applicant to join by telephone if he so wishes" and that the "The Tribunal administration can provide guidance on how to do this if it would be helpful." (c) pointing out it was also possible forarrangements to be made "for the Applicant to attend a local court or tribunal centre to facilitate his participation in the hearing by computer." (d) saying that "…the Applicant should contact the Tribunal without delay to discuss these options."

29. Although, as I accept, the Applicant cannot access CVP from his personal address I do not accept that the only alternative to deal with this current set-aside request is for an in-person hearing because the 1 December 2025 CMD identified other reasonable ways in which the Applicant could attend this hearing and asked the Applicant to discuss these options without delay.

30. Having reached this conclusion I considered whether to adjourn the hearing in any event to give the Applicant a further opportunity to investigate the options suggested on 1 December 2025. Having considered the above and in particular rules 36 and 2 2009 Rules my decision is that the hearing should proceed in the absence of the Applicant because:- (a) I am satisfied that the Applicant was notified of the 30 January 2026 hearing and had a copy of the 1 December 2025 CMD. (b) the 1 December 2025 CMD notified the Applicant that by rule 36 2009 Rules that "…if a party fails to attend a hearing, the Tribunal may proceed in their absence if: (a) satisfied that the party has been notified of the hearing or reasonable steps have been taken to give notification; and (b) it considers it in the interests of justice to proceed with the hearing." (c) despite this being the Applicant's request to set aside the 2025 strike-out of the Application the Applicant does not appear to have taken up the suggestion to contact the Tribunal to discuss options and seek guidance. (d) the Applicant's position is set out in various documents available to the Tribunal and he said his letter and enclosures of 20 January 2026 "must stand for me at any Tribunal hearing where I am not present in person…" (e) on balance it would be dealing with the case fairly and justly and in the interests of justice to continue with the hearing.

31. In conclusion I do not accept the Applicant's position as to the necessity for an in-person hearing. As regards the question of an adjournment and Rule 36 2009 Rules (a) I am satisfied that the Applicant was notified of the 30 January 2026 hearing and (b) I consider it to be in the interests of justice to proceed with the hearing. Extension of time – Rule 41(3) 2009 Rules

32. Rule 41(3) states that any request by Rule 41(1) must be received by the Tribunal "…no later than 28 days after the date on which the Tribunal sent notice of the decision to the party."

33. The Applicant's letter, by which this request to set aside is being made (incorrectly) dated 17.03.24, is marked as being received by the Tribunal on 4 April 2025. In the letter dated 17.03.2024 the Applicant says "I write in regards both the reply letters I received…and the 5.3.2025 not received on that day of course but some time after this date Which contained the order off district judge Moan dated 17.2.2025."

34. On this basis, if the Tribunal's letter was sent out on 5 March 2025, the Applicant was only just outside the time limit to make this request. Although not explicitly requested the time-limit can be extended by rule 5 (3)(a) 2009 Rules having regard to the overriding objective in Rule

2.

35. In considering this question I have not embarked on "an investigation of the merits" (R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1663). I have had regard tothe three stage test in R (on the application of Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) (extension of time for appealing: principles) IJR [2016] UKUT 185 (IAC). I do not consider that, in the context of this matter, the very short period involved is a serious or significant issue and the necessary extension of time is allowed. Request to set aside the 2025 strike-out

36. In seeking to set aside the 2025 strike-out the Applicant needs to show that it is in the interests of justice to do so and one or more of the conditions set out in Rule 41(2) 2009 Rules are satisfied namely:- (a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party's representative; (b) a document relating to the proceedings was not sent to the Tribunal at an appropriate time; (c) a party, or a party's representative, was not present at a hearing related to the proceedings; or (d) there has been some other procedural irregularity in the proceedings.

37. I do not consider it to be in the interests of justice for the 2025 strike-out to be set aside. This is because I have reviewed the content of the bundle and other papers provided and the latest correspondence from the Appellant. For the reasons set out in paras 6 to 15 of these reasons I agree with the IC and Judge Moan as regards the underlying lack of merits of the Application and the lack of jurisdiction. If the 2025 strike-out were to be set aside on the basis of this request in my view it would then go on to be re- made.

38. Also, if needed, in my view rule 41(2) 2009 Rules is not satisfied. In the Applicant's request to set aside the 2025 strike-out there are two main issues relevant to the conditions of rule 41(2) 2009. These are:- (a) that the Applicant did not know about the 10 February 2025 hearing. (b) whether the IC complied with the CMD given by Judge Foss.

39. As regards the first point Judge Moan dealt with the strike out request on the papers as allowed and provided for by rule 32(3) 2009 Rules which states that the Tribunal "may in any event dispose of proceedings without a hearing under rule 8…".

40. As regards the second point the IC presented its request in a form GRC5 supported by its response, a list of agreed facts and a list of principal issues. The Applicant was aware of the request as required by rule 8(4) 2009 Rules and responded. On 13 December 2024 Judge Foss issued CMD. The Judge ordered that, prior to a Judge considering the strike out, the IC was file with the Tribunal and copy to the Applicant:- "…a single, indexed, paginated bundle which contains not only the correspondence sent by the Respondent to the Applicant which is described at paragraphs 25-31 of the Respondent's submissions of 13 September 2024 under the heading "Factual Background" but also the correspondence sent by the Applicant to the Respondent in the exchanges between the parties therein described"

41. The IC says (see para 24 of its skeleton) "The Commissioner complied with the above direction…", the Tribunal did receive the bundle and in a letter to the Tribunal of 31 January 2025 the IC said:- "Further to the Case Management Directions of Judge Foss dated 13 December 2024, we can advise that a copy of the Bundle sent to the Tribunal today at 14:31 has also been sent by first class post to the Applicant."

42. The Applicant says it was not received however I conclude and find as a fact that the IC complied with the CMD made by Judge Foss because the bundle was filed with the Tribunal and copied to the Applicant even though, for whatever reason, the Applicant did not receive it.

43. For completeness I noted that on 9 May 2025 Judge Dwyer said this:- "The appeal is struck out, however, the Appellant has made an application for review of that decision, on the basis that they did not receive the bundle which was issued to them by first class post on 31 January 2025 by the Respondent. In order to consider the Appellant’s application, I consider it is in the interests of justice for the bundle to be issued again to the Appellant, so that they can make informed submissions as to whether the appeal should be struck out.

44. These CMD went on to require the IC to post a further bundle to the Appellant…" and suggested "Whilst the Tribunal cannot direct the Respondent as to the manner in which this is sent, it may be helpful to avoid any further applications from the Appellant, that this is sent by a postal method which has some tracking or delivery confirmation. If any confirmation is received, this should also be forwarded to the Tribunal."

45. Following the Judge Dwyer CMD of 9 May 2025 the IC said:- "The Commissioner in accordance with paragraph 1 of the Case Management Directions issued by the Tribunal dated 9 May 2025 sent a copy of the bundle as directed to the Applicant on 14 May 2025 by Special Delivery. By way of an update, on 20 May 2025, the Commissioner accessed the Royal Mail website to track the Special Delivery, it was noted that attempts had been made to deliver the Special Delivery on both the 16 and 17 May, however there was ‘no answer’ and it is understood that the Special Delivery is now ‘available for redelivery or collection’. On 20 May 2025, the Commissioner sent a letter to the Applicant providing an update and included copies of the Commissioner’s letters dated 14 May and 31 January 2025 for his information (attached)."

46. I have also considered the overriding objective. I agree with Judge Saward who said, when vacating the hearing on 1 December 2025, "This is a long outstanding application" In my view it would not be dealing with the case fairly and justly to set aside the 2025 strike-out noting in particular rule 2(2)(a) 2009 which refers to the need to deal with "…the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties"

47. In summary, in my view, it not in the interests of justice (nor the overriding objective) to set aside the 2025 strike-out and (if necessary) the conditions of rule 41(2) are not met. Stay

48. The Applicant also seeks a stay. As the current status of the Application is that it is struck out and as this request has been refused I did not consider a stay necessary or appropriate. Decision

49. Accordingly the Applicant's request: (a) for the hearing to be adjourned and re-listed as an in-person hearing is refused. (b) that the 2025 strike-out is set aside and for a stay is refused. Signed: Judge Heald Date: 2 February 2026