Yes. We posed the question to our legal technical partners, Blake Morgan LLP, who responded with their opinion as summarised here:
The Building Safety Act defines ‘relevant defects’ as anything done or not done, used or not used in works carried out in the last 30 years, which causes a risk to people by fire spread or building collapse. A ‘relevant measure’ is one taken to rectify or reduce that. The provision is in Schedule 8 Paragraph 9 of the Act, which prohibits legal and other professional services fees and is focused on liability.
The processes of building safety manager and fire risk appraisal of the external walls are not primarily concerned with liability, rather with health and safety, or the routine appraisal of a building.
Both services involve processes of consultation and reportage, which are not part of third-party liability. Though the reports may lead to the discovery of ‘relevant defects’ leading to further reports or advice that could be caught by the prohibition of the Act, “this does not, in our view, mean that the BSM work and the FRAEW/PAS9980 reports are”.
It is noted that the processes being considered remain to be performed even after a building that had ‘relevant defects’ has been remediated.
It is important to consider that no freeholder or accountable person should delay fulfilling their obligations to make a building safe for occupation due to uncertainty about how fees for such work are to be treated. There are only two possible parties responsible: the leaseholders or the freeholder.
Blake Morgan LLP notes that it can provide specific advice tailored to specific circumstances if required. This note is the company’s general opinion to assist FRC.