Article 36 of the Regulatory Reform (Fire Safety) Order 2005 gives a responsible person and an enforcing authority a way to settle a technical disagreement without either side simply conceding the point: they refer the question jointly to the Secretary of State and get a decision. Neither party can trigger it alone — Article 36(2) requires the enforcing authority and the responsible person to "agree to refer the question as to what measures are necessary to remedy the failure".
FSO Guidance Note 2 has set out the determination process since 2010; the Ministry of Housing, Communities and Local Government issued a substantial revision of it on 3 July 2026. For a responsible person mid-argument with a fire and rescue authority about what compliance requires, this is the route the Order has always provided — now with an updated, documented process behind it.
What a determination actually resolves
Article 36 applies where a responsible person has failed to comply with a provision of the Order and the enforcing authority agrees that failure exists — but the two sides cannot agree on the measures needed to remedy it. It is not a mechanism for disputing whether a breach occurred, and it is not an appeal on a point of law. FSO Guidance Note 2 is explicit on the boundary: determinations are for "technical solutions where there is a breach of the FSO and the enforcing authority and responsible person cannot agree on the measures which are necessary to remedy the failure, not questions about the law and its interpretation" (para 10).
A typical case looks like this: the enforcing authority is satisfied that a fire and rescue authority requirement is needed to remedy a breach, and specifies one particular technical solution — a specific compensatory feature, say, or a particular means-of-escape modification. The responsible person accepts the breach but proposes a different technical solution and believes it meets the same objective. That is the disagreement Article 36 exists to resolve.
Who can request one, and when
Because the referral has to be joint, timing depends on both sides being willing to pause and ask for an independent view rather than proceed to formal enforcement. FSO Guidance Note 2 recommends doing this "at the earliest suitable opportunity and wherever possible before a formal enforcement notice has been issued" (para 8). That is a practical steer as much as a procedural one: once a notice is served, the dynamic changes.
Once an enforcement notice has been issued, the guidance points the other way: "the appropriate course of action for the responsible person is to lodge an appeal within 21 days" (para 9). There is one carve-out — the same paragraph states that "a determination may still be appropriate if it concerns directions issued by the enforcing authority within the notice". Outside that narrow case, the two mechanisms are not interchangeable, and missing the appeal window while waiting on a determination that does not apply at that stage would leave a responsible person with neither option.
What the referral needs to show
A joint referral is evidence-led, not a statement of positions. FSO Guidance Note 2 (Annex B) sets out what both parties need to submit: contact details for both parties and the premises address; a joint statement of the matter in dispute; the enforcement history relevant to the breach; the current fire risk assessment; photographs and correspondence relevant to the disagreement; a statement setting out each side's technical position; and supporting technical documentation — plans, calculations, and relevant data.
How long it takes, and what the decision means
The department "will aim to issue a determination within 4 months of the request being submitted" (para 18). The Secretary of State can also request further information from either party under Article 36(3), and may decline to proceed if that information is not provided within the period specified (Article 36(4)).
Once a determination is made, it has teeth. Under Article 36(5), the enforcing authority "may not... take any enforcement action the effect of which would be to conflict with" the determination. That protection is not indefinite: Article 36(6) removes it if the premises or their use change significantly enough that the risk to relevant persons has itself changed materially since the determination was made.
What this means in a live disagreement
The practical decision point is early and binary: if a genuine, evidenced technical disagreement exists and no enforcement notice has been served, a joint referral under Article 36 is worth proposing to the enforcing authority before positions harden further. If a notice has already landed, the referral route is closed and the 21-day appeal window is what matters.
Apex's fire advisory and specialist support work covers this kind of dispute — setting out, against the applicable standard and the evidence on the building, whether an enforcing authority's stated requirement is the only technical solution that satisfies the Order, or whether an alternative genuinely does the same job.
Common questions
Can a responsible person request a determination without the enforcing authority agreeing?
No. Article 36(2) requires both the enforcing authority and the responsible person to agree to refer the question to the Secretary of State. Neither side can start the process unilaterally.
What if the fire and rescue authority has already issued an enforcement notice?
FSO Guidance Note 2 states that a determination should be sought before a formal enforcement notice is issued wherever possible. Once a notice has been served, the guidance directs the responsible person to appeal within 21 days instead — unless the disagreement concerns directions issued within that notice, in which case a determination may still be appropriate.
Does a determination decide whether a breach occurred?
No. Article 36 only applies once both parties agree a breach exists. It resolves disagreement over the technical measures needed to remedy that breach, not whether the breach itself is made out, and not points of law.