Mixed age couple - for how long does Article 7 apply?

Interesting and topical mixed age couple case.  Younger partner is EEA national who has pre-settled status and was until recently economically inactive, older partner is British pensioner.  Not an Eind/Singh look-alike, so younger partner has no right to reside other than pre-settled status.  As seems to have been confirmed by the European Court today, this means Article 7 of the no 31 order applies:

- They cannot make a joint claim for UC
- The British member of the couple is too old to claim UC as a single person

So the pensioner was on HB as a single person ... until the younger partner found work and now has a right to reside as a worker.  What happens next?  Having made a claim for HB relying on Article 7, by what mechanism might it terminate?  My first though was that if Reg 3(3) of the UC Regs no longer applies, Article 7 no longer treats the older partner as single and so Article 6 of the No 31 Order will be triggered because they have, by operation of law, become a mixed age couple with SPC-age HB.  But on close reading of Article 6 I don’t think any of the termination events has actually happened: the award has not migrated from working age to SPC Regs, and the claimant has not “become a member” of a mixed age couple - he always was such a member but the deeming fiction in Article 7(3) meant he was treated as if he wasn’t a member of an MAC.

If there was a pension credit claim as a single person, I think that would have to end if he is no longer treated as single under Article 7 because as a couple they don’t meet the conditions for transitional protection under Article 4.  But SPC-age HB alone could well be the better buy in view of the higher allowance for living costs and 65% taper applied to all income including his pension.

What do you think - does HB as a pensioner couple survive?  Is there an argument that he has “become a member of a mixed age couple” for the purpose of Article 6(2)(a) by virtue Article 7(3)(b) no longer applying?

Interesting one.

I agree that the wording used in Art 6(2)(a) doesn’t seem to include this case. But then I also think Art 6(2)(b) doesn’t include couples already on HB who “age into” mixed-age status. We know DWP doesn’t agree with that!

HB Adjudication Circular A9/2019 is fairly clear that the HB award ends. See Para 17, and the examples after that paragraph.

The Circular refers to an ability to “claim” HB until the younger partner becomes eligible to UC again, but I think the examples make it clear that they also mean entitlement to HB ends at that point (see for example the first bullet point in the first example).

See also the last couple of sections of that Circular, along with examples 5 and 6.

Thanks Charles.  The guidance is indeed very clear.  That’s another one that might have to be looked at by a UT some day.

“What do you think - does HB as a pensioner couple survive?  Is there an argument that he has “become a member of a mixed age couple” for the purpose of Article 6(2)(a) by virtue Article 7(3)(b) no longer applying?

Isn’t that the problem - he’s been treated as a single person under Art,7 so whilst he may have been part of a MAC previously in fact, he wasn’t treated as such, and as the situation has now changed, for the purposes of the CO, he’s now become part of a MAC for entitlement purposes?

I think that’s probably right Paul, the more I think about it the more convincing it sounds