Retired EEA nationals and the right to reside

I have a client who entered the UK in March 2005, aged 56. She joined her husband who entered the UK in 2003, and was aged 60 so was at the time PCGC eligible. They are joint Somali / Dutch nationals. The husband claimed PC and was awarded it from February 2004. He was severely disabled and in receipt of DLA HRM and HRC. He was awarded an increase in his PC for my client, who was also awarded carers allowance from, I believe, April 2006 up until her husband’s death this year. She has also been awarded AA in her own right as from August 2017. Her husband sadly passed away on the 3rd February this year and my client has now had her claim for PC in her own right rejected on the grounds she has no right to reside, with HB subsequently following suit.

For both benefits I am arguing that she has a permanent right to reside as having been lawfully resident for over 5 years as a family member of a EEA national who also has a permanent right to reside.

My argument on this ground runs as follows:
Her husband entered the UK and received benefits prior to the 1st May 2004 and as such does not need the R2R to continue to receive the benefit as he is transitionally protected. Therefore, (and this is where I’m a little grey due to the definition of legally resident!) he is legally resident in the UK so once he has reached 5 years of being so, he gains the permanent right to reside as his residence prior to April 2006 counts. He reaches this point either in 2009 or 2008. It follows from this that my client also gains a permanent R2R having resided for 5 years plus as the family member of a EEA citizen with a permanent R2R, and she reaches this point in either 2014 or 2013.
Am I thinking on the right lines or am I completely off track? PC are asking for evidence that he was self-sufficient etc, though they themselves have already accepted he has a R2R as they were paying him for 14 years!
In the alternative, should this argument fail, I am arguing that she is the ascendant dependent family member of an EEA national with worker status, as she is currently wholly dependent on her daughters, also Somali / Dutch.
Any guidance or further arguments I can use will be greatly appreciated.
Thanks!

Being transitionally protected from the right to reside test for benefits purposes only is not the same as having a right to reside, so I don’t see that it can be of any relevance to your client’s case.

I would not at all be hopeful about arguing that your client could have a right to reside in her own right or in reliance on her husband because of the lack of any work/self-employment/studying/self-sufficiency/jobseeking on both fronts. Five years lawful residence is going to be impossible to demonstrate and all of the derogations require at least some history of activity, as do the requirements to retain status upon the death of a family member.

However, I think that what you have set out as your back-up argument could well have legs. A worker’s family includes dependent ascendant relatives, so if you can show that any one of her daughters is a worker (or retained worker or whatever) and that she is dependent on them as defined in CIS/2100/2007 then your client should be entitled to PC and passported to HB.

Thanks Elliot, you’ve confirmed my worst fears about this. I floated the permanent R2R argument as I felt there might be some margin of legal argument when that was obtained prior to the change in law and as this was, to my small brain, the simplest argument to make I thought I’d try it on for size. I do have lots of evidence for my “back-up” argument, so am confident of success.
I was also thinking of running a carers related argument but think this has even shorter legs!

GE v SSWP [2017] AACR 34 followed CJEU case law in stating that the EEA national must satisfy conditions of Article 7(1) of EU Directive 2004/38 in order for period to count toward permanent right of residence.

This means that partner must have been legally resident as a worker, self-employed person, self-sufficient person, student or family member of the above in order to count the time towards the permanent right to reside. Don’t know whether there is an argument that partner retained worker status?

No. Partner never worked so no possibility of retaining worker status. I might have to delve right back and see if he could be seen as a family member of an EEA national with worker status.