First EUSS application refused completely, second application pending

We have a client approach us whose first EUSS application was refused completely (not even Pre-Settled status granted) and this seems to be that she missed calls etc. from the Home Office to gather evidence. She missed the deadline for admin review by a long way and is not appealing. She put in a second EUSS application recently which is pending.
Is there any chance - although I feel I’m clutching at straws here! - that she could be classed as in a protected group and entitled to UC again, in that she has made an application to EUSS after 30/06/2021 and that second EUSS application hasn’t been determined yet?  I can see that it wouldn’t make sense for someone to just be able to keep submitting new EUSS applications and receive benefit while these are repeatedly refused. The guidance doesn’t directly address someone in the circumstances where one claim has been determined & refused (and there is no appeal in well out of time), and has another application pending. It (ADM memo 19/21) just reads as though someone is not entitled until the second claim is determined and accepted, and the Jobcentre certainly think this.
Our next steps are of course trying to get the second application completed & expedited, with immigration advice.

The mischief of repeated applications is answered by the legislation, which only preserves EEA residence rights for people with pending EUSS applications if:

- they had a right to reside as of 31/12/20, and
- the pending application was made within the deadline

As far as I can see the legislation is silent about the effect of a late application being entertained while it remains pending, so the whole treat-it-like-an-in-time-application approach by DWP seems to be discretionary.  If DWP wants to treat further applications by previously unsuccessful applicants differently from late first-time applications, I can’t see anything you can point to to say that they are wrong to refuse benefit in the former case.  Strictly speaking, even a first-time application does not preserve EEA residence rights if it was submitted late and/or the claimant did not have a right to reside on the last day of 2020.

See SI 2020/1209, and contrast with 2020/1309 which deals with people who have pre-settled status.

Thank you (rather belatedly), for the reply

UC and HB (as she is in supported accommodation) both take the view that no benefit can be paid on the basis of a second application made and pending, only on the outcome of that second application.

Her second and pending application was of course made late but I wondered if she might be viewed as having ‘reasonable grounds’ for the late application. She had actually achieved a permanent right to reside well before 31/12/20 (as the child under 21 of a worker ), which makes the failure of the 1st EUSS app all the more frustrating.

All she achieves by having good reasons for delay as far as I can see is that the Home Office will entertain the application.  No residence rights are resurrected because the legislation preserving residence rights rigidly applies the 30/6/21 deadline.  All you can do is point to DWP’s extra-statutory lenient treatment of people who have first applications accepted late and suggest there is insufficient difference between the facts of those cases and this one to justify treating her differently.  But as far as I can see from the regs, you cannot really say they are wrong: the anomaly is that they do allow benefit to anyone with a pending late application, rather than not allowing it to this claimant.