Hi I am a committee member for a committee run playgroup that is currently going through a change of management and the school will be taking over. In our constitution set up 9 years ago, it states that if the playgroup closes we have to distribute our assets to other local pre School Learning Alliance registered organisations. If the playgroup is operating from the same premises, keeping the same staff and has the same children, surely we are simply having a change of management so do you think this distribution of asset clause applies? The staff will be going through TUPE changeover as part of the takeover..thanks
Hi my name is ***** ***** I am happy to help you today. In this scenario the enitity 'the playgroup' will not close so this clause will not apply. The staff will transfer under TUPE as you have correctly identified. I would not worry about this clause, it is not terribly well drafted but there will be no obligation to distribute assets in these cirucmstances.
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I forgot to say that the playgroup is also a registered charity. The detail of the clause is as follows:
If the pre-school is wound up or dissolved and after all of its debts and liabilities have been satisfied there remains any property or assets these shall not be paid or distributed amongst the members of the preschool but shall be applied in one or more of the following ways:
a) transferred to the preschool learning alliance or, with the agreement of the preschool learning alliance to another preschool established as a charity whose governing instrument prohibits the distribution of income and property to an extent at least as great as is imposed on the preschool and whose objects are similar to those of the preschool; or
b) in such other manner consistent with the charitable status of the preschool as the preschool learning alliance and the charity commission have approved in writing in advance.
Any further advice would be much appreciated
Hi sorry for the delay I was away at the weekend. As I originally said the key thing is that the 'entity the pre-school is not being either wound up or dissolved so the clause does not apply at all.
The only way in it which it could be suggested it would apply would be if the charity were to be dissolved as a result of the re-structure but it does not make that point clear in the clause itself.
If the pre-school is anywhere defined in the agreement please let me know.