Found fit for work and failed Habitual Residence test in full digital service area

I have a client who has been in the UK for 13 years.  Has never worked due to mental health issues and has a son who is now at university.  She failed an ESA WCA late last year and whilst waiting for an MR, applied for UC.  She failed the HRT as no right to reside.  She does not have any derived rights to reside as her son is no longer financially dependent on her.

At present I am assisting my client to appeal the ESA decision and once the SSCS1 has been processed by HMCTS, will be asking for assessment rate of ESA.  I know this is very, very unlikely to succeed but am hoping that as she did not actually have an entitlement to UC, that it might work!

I am however also concerned that even if we win the appeal, as we are in a full digital service area, my client won’t be able to go back onto ESA.  Do any of you clever people have any thoughts, suggestions etc or am I flogging a dead horse?

I just find it so unfair that my client has been left destitute due to another wrong decision by the DWP.

Any thoughts anyone??!

Has her history been based on derivative RTR through her son? - A full history would be needed to establish permanent RTR, which she may have

and to establish the RTR by which she claimed ESA before the WCA, which she may still have

If she was benefiting from a derivative right to reside, the Court of Justice held in Texeira that the right of residence ends when the child reaches the age of majority unless the child continues to need her presence and care. If he is an Uni probably not.

A fuller history probably required

She had derivative RTR from her school aged son but this is no longer the case as he is now at Uni.  She also had RTR for benefit purposes as she was continuously on a qualifying benefit from pre March 2004.  However she failed her WCA and so her ESA and HB stopped therefore breaking her continuous claim.  Unfortunately UC is not a qualifying benefit for these purposes hence her failure of the RTR as she has not been able to establish permanent residency (never been worker or work seeker).

If she had not failed the WCA she would have been fine and if she had not claimed UC after her ESA claim ended, she could have had a continuous claim for HB (once unsuspended as on nil income) so none of this would have been an issue.