Appeal number: EA/2021/0109 & QJ/2021/0011
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FIRST-TIER TRIBUNAL
GENERAL REGULATORY CHAMBER
Information Rights
PAULINE STEWART Applicant
- and -
THE INFORMATION COMMISSIONER Respondent
Before:
JUDGE LYNN GRIFFIN
Determined at a remote hearing via Cloud Video Platform
On 9 June 2021
Appearances
Mrs Stewart appeared in person
DECISION
1. The application EA/2021/0109 is struck out under rule 8(3)(c) of the
Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules
2009, because there is no reasonable prospect of the Applicant’s case succeeding
in the proceedings.
2. Application QJ/2021/0011 is struck out under rule 8(2) of the Tribunal
Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009,
because the Tribunal does not have jurisdiction to deal with the proceedings.
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V: video (all remote)
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MODE OF HEARING
3. The proceedings were held by the cloud video platform. Mrs Stewart
joined remotely. The Respondent had indicated that she did not propose to
attend the hearing. I was satisfied that it was fair and just to conduct the hearing
in this way.
REASONS
Background to the Applications
4. These applications relate to further complaints2 made to the Respondent
by Mrs Stewart arising from her concerns about how various public authorities
have calculated her pension entitlement and consequent enquiries in that
regard about her personal data held by those public authorities. The Applicant
believes that her pension has been wrongly calculated and that information
held on the systems of her former employers and pension providers is
inaccurate and has adversely affected the amount of her pension.
5. The public authority subject of the Applicant’s complaints in these cases
is the Cabinet Office in EA/2021/0109 and the Information Commissioner in
QJ/2021/0011. For the sake of clarity when describing the Information
Commissioner acting as the public authority I shall use “ICO” (i.e. The
Information Commissioner’s Office) and as regulator I shall use the
Information Commissioner.
6. The cases were joined for the hearing at the request of Mrs Stewart and
both stem from her underlying concerns.
7. The Applicant’s ultimate aim is the rectification of that information and
the re-calculation of her pensions, including payment of unpaid amounts. She
also seeks a direction to the Information Commissioner to issue sanctions to the
Cabinet Office for non-compliance with timescales.
8. EA/2021/0109 relates to complaint reference IC-60277-T2P0 made to the
ICO; a data protection complaint made to the Information Commissioner on 9
September 2020. In case management directions made by the Registrar on 21
April 2021 a short extension of time was granted to lodge the application and
it was identified as an application under s166 Data Protection Act 2018.
9. In the response to the application the Information Commissioner argues
that the application in EA/2021/0109 should be struck out as the complaint
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See the tribunal’s decision in QJ/2020/0022
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investigation is ongoing. The Information Commissioner had instructed the
Cabinet Office to respond to the Applicants concerns by 5 May 2021. On 4 May
2021 the Cabinet Office wrote to Mrs Stewart. She was informed in the letter of
4 May 2021 that should she not be satisfied with the response she could make
a further complaint to the Cabinet Office and/or make a new complaint to the
Information Commissioner.
10. QJ/2021/0011 relates to ICO reference IC-92952 – D6P5. The Applicant’s
letter of 7 March 2021 was treated by the ICO as a request made under the
Freedom of Information Act 2000 [FOIA]. A response was sent to Mrs Stewart
on 31 March 2021 informing her that of the information requested she had some
already, a part had been previously answered and providing her with 103
pages of information from the ICO system to which she had not previously had
access.
11. Mrs Stewart agreed that her request of 7 March 2021 was properly treated
as a request under FOIA. She explained that at the heart of her request is her
belief that she has not been provided with all the information she is entitled to
about how her pension was calculated and in relation to the complaints she has
made.
12. I note that in her notice of application and other documents Mrs Stewart
outlines the nature of her disability and the circumstances leading to her ill
health. She is representing herself. As a result, and having regard to the Equal
Treatment Benchbook, I asked Mrs Stewart whether there were any
adjustments to the process that were needed to enable her participation; she
said there were not.
The Law- EA/2021/0109
13. A data subject has a right to make a complaint to the Commissioner if they
consider that in connection with the processing of personal data relating to
them there is an infringement of the General Data Protection Regulation
[GDPR], and/or Parts 3 or 4 of the Data Protection Act 2018 [DPA18]: see
Article 77 GDPR, and section 165 (1) & (2) DPA18.
14. Under section 166 DPA18, a data subject has a right to make an
application to the Tribunal if they consider that the Commissioner has failed to
take certain procedural actions in relation to their complaint.
15. Section 166 DPA18 as relevant states:
(1) This section applies where, after a data subject makes a complaint under
section 165 or Article 77 of the GDPR, the Commissioner—
(a) fails to take appropriate steps to respond to the complaint,
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(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.
16. The reference to taking “appropriate steps” in section 166(1)(a) and (2)(a),
includes “investigating the subject matter of the complaint to the extent appropriate”
and “informing the complainant about progress on the complaints”, as set out in
sections 166(4) and 165(5) DPA18 which read
(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
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(b)informing the complainant about progress on the complaint, including
about whether further investigation or co-ordination with another
supervisory authority or foreign designated authority is necessary.
17. The reference to “provide the complainant with…. the outcome of the
complaint” in s. 166(1)(b) and 2(b) is not qualified with the word appropriate.
18. The Tribunal can only exercise powers given to it by Parliament as set out
in legislation. When considering an application under s. 166 the Tribunal is not
concerned with the merits or strength of the underlying complaint. Section 166
DPA18 does not provide a right of appeal against the substantive outcome of
an investigation into a complaint under s. 165 DPA18. Neither does it allow the
Tribunal to direct to what extent it is appropriate to investigate any complaint;
that is a matter for the Information Commissioner.
19. On an application under s. 166 DPA18 the Tribunal is limited to
considering whether to make an order of the kinds set out in s. 166(2) requiring
the Commissioner to
a. Take appropriate steps to respond to the complaint or
b. Inform the complainant of progress on the complaint or
c. Inform the complainant of the outcome of the complaint.
20. The powers of the Tribunal in determining such an appeal have been
considered by the Upper Tribunal in Leighton v Information Commissioner (No.2)
[2020] UKUT 23 (AAC) in which Upper Tribunal Judge Wikeley said at
paragraph 31
“Appropriate steps” mean just that, and not an “appropriate outcome”. Likewise,
the FTT’s powers include making an order that the Commissioner “take
appropriate steps to respond to the complaint”, and not to “take appropriate steps
to resolve the complaint”, least of all to resolve the matter to the satisfaction of
the complainant.
21. In the case of Scranage v Information Commissioner [2020] UKUT 196 (AAC)
the Upper Tribunal went further in saying:
“... 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. This is consistent with the terms of Article 78(2) of the GDPR (see
above). The prescribed circumstances are where the Commissioner fails to take
appropriate steps to respond to a complaint, or fails to update the data subject on
progress with the complaint or the outcome of the complaint within three months
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after the submission of the complaint, or any subsequent three month period in
which the Commissioner is still considering the complaint.”.
22. These decisions of the Upper Tribunal are binding on the First Tier
Tribunal as to the approach that must be taken to applications such as this.
23. As I explained to Mrs Stewart, a person who wants a data controller (or
processor) to rectify personal data or otherwise properly comply with the Data
Protection Act 2018 or General Data Protection Regulations in relation to
holding personal data must go to the High Court or a County Court pursuant
to section 180 of the Data Protection Act 2018; that is not an application for
judicial review. I express no opinion one way or another about whether Mrs
Stewart can do so or whether she should do so; that is a matter for her about
which this Tribunal cannot advise her.
24. Mrs Stewart is not satisfied with the actions of the Information
Commissioner. This Tribunal does not have an oversight function in relation to
the Information Commissioner’s Office and does not hold them to account for
their internal processes. The Parliamentary and Health Service Ombudsman is
the body which has that function. I express no opinion one way or another
about whether Mrs Stewart can or whether she should raise the issue with the
Ombudsman; again, that is a matter for her about which this Tribunal cannot
advise her.
The legislative framework - QJ/2021/0011
25. The Tribunal’s jurisdiction to deal with appeals under FOIA is set out in
section 57 which requires, in subsection 1, that a decision notice has been served
by the Information Commissioner before a complainant may bring an appeal
to the Tribunal.
26. The regime set under FOIA applies as regards the ICO just as it does to
any public authority, once a response has been received to the request for
information the requestor has the option of making a request to the ICO for an
internal review and thereafter if still not satisfied with the response a complaint
can be made to the Information Commissioner as regulator under s50 FOIA.
The complaint is considered, a decision notice issued and that if the
complainant wishes to challenge the decision notice this forms the basis of the
tribunal’s power to hear an appeal and decide if the decision notice was in
accordance with law, see s58 FOIA.
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27. The Tribunal rules3 require that the tribunal strike out any proceedings
where there is no jurisdiction to hear the case; rule 8(2).
Submissions from Mrs Stewart
28. Re EA/2021/0109 , Mrs Stewart said she had made a request for an
internal review to the Cabinet Office on 7 May 2021. She had also written to the
ICO on 1 June 2021, there is no conclusion as yet. At the hearing Mrs Stewart
understood the explanation I gave her about the tribunal’s jurisdiction in FOIA
cases. She apologised for bringing the application but I reassured her that no
apology was needed.
29. More generally Mrs Stewart explained she is seeking the information to
support and to prove that her pension has been wrongly calculated and she
wants her information “rectified”. She wants the Information Commissioner to
use her powers to force the Cabinet Office to rectify the data it holds. She would
like her pension recalculated.
30. Mrs Stewart has not made any application to the civil courts; she
explained her concerns about costs and her current family circumstances
preclude this. Her previous experience of obtaining legal advice has led to a
loss of confidence in the legal professions. However, as explained at the hearing
the Tribunal cannot advise Mrs Stewart and cannot provide her with a remedy
that it has no power to order.
31. The Commissioner submits that the applications to the Tribunal should
be struck out as having no reasonable prospects of success.
Conclusion EA/2021/0109
32. Turning to s166 DPA18, and EA/2021/0109 as set out above the Cabinet
Office has written to Mrs Stewart on 4 May 2021, she has responded to them
and to the Information Commissioner. The next step is for the Respondent to
consider the Applicant’s complaints, take steps and inform her of the outcome
her complaint and the steps she needs to take in order for further progress to
be made if appropriate.
33. The complaint is recently made and ongoing, the Tribunal does not have
any power to supervise the performance of the Commissioner’s functions, or
mandate the imposition of any sanction. It is for the Information Commissioner
to comply with her duties under s165, in particular subsection 4 which requires
her to
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The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009
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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.
34. These actions should be taken within 3 months of the complaint, see s166
DPA18. This application is made too soon. There is nothing to suggest that the
Information Commissioner has or will fail to abide by her statutory duty. I note
that Mrs Stewart remains sceptical about what will happen in response to her
complaint but it would not be fair or just to assume that a direction was
required before giving the Information Commissioner the opportunity to
follow her processes.
35. The tribunal does not have power to order the rectification of data
whether held by the Information Commissioner’s office or any other public
authority.
36. There is subsequently no basis, at this stage, for the Tribunal to make an
order under section 166(2) DPA18.
37. In order for this application to go forward there must be a realistic, as
opposed to a fanciful or unrealistic, prospect of its success as explained by Lord
Woolf MR in Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538.
38. For the reasons set out above, I have concluded that this Tribunal would
not be able to provide the Applicant with the orders she seeks in EA/2021/0109
and that therefore the application has no reasonable prospect of success.
39. Having taken account of all relevant considerations, I strike out
application EA/2021/0109 pursuant to 8(3)(c) of the Tribunal Procedure (First-
tier Tribunal) (General Regulatory Chamber) Rules 2009 because there is no
reasonable prospect of the application succeeding.
Conclusion QJ/2021/0011
40. Turning to QJ/2021/0011, in the absence of a decision notice the tribunal
has no power to consider the appeal under FOIA. Given the stage of the
complaint and the nature of the request for information there is no other more
appropriate forum. I must therefore strike it out under rule 8(2). This will not
affect any later right of appeal accruing once the process has taken its course.
41. Having taken account of all relevant considerations, I strike out
application QJ/2021/0011 pursuant to 8(2)of the Tribunal Procedure (First-tier
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Tribunal) (General Regulatory Chamber) Rules 2009 because the tribunal has
no jurisdiction to deal with the proceedings.
Date of Decision: 28 June 2021
Date Promulgated: 30 June 2021
Lynn Griffin
First Tier Tribunal Judge
© CROWN COPYRIGHT 2021
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