Family member of EEA stuck

Any thoughts gratefully received.

Client is family member of EEA national but nigerian national herself. The EEA national is her husband who is normally in the UK and working. However, just before covid he went on holiday to an african country. He is now stuck for the forseeable.

He has pre-settled status and was working before the holiday. She also works herself normally but can’t currently due to the 3 children in her care.

No legacy benefits in payment.

Aside from the logistical problem of them probably needing to claim as a couple as it’s less than a 6 month absence, is she even entitled to claim benefits in her own right? I initially thought no, but then thought perhaps she might still meet the family member bit?

Thank you.

Assuming that at least one of the children is of school age, I’d say she was the primary carer of a worker’s child in education. See pages 1585 - 1586 of 2019/2020 CPAG handbook as a starting point. The fact that she isn’t an EEA national herself shouldn’t matter. Paragraph 75 of the Baumbast case:

…where children have the right to reside in a host Member State in order to attend general educational courses pursuant to Article 12 of Regulation No 1612/68, that provision must be interpreted as entitling the parent who is the primary carer of those children, irrespective of his nationality, to reside with them in order to facilitate the exercise of that right…

As far as right to reside goes, we can give the complicated questions a body-swerve (is he still a worker, is his work still genuine and effective) because she appears to have a conventional derivative right to reside, assuming at least one kid is old enough for school.  She is the primary carer of at least one schoolchild whose father is or has been an EEA worker in the UK at some point during that child’s life.

As for claiming, yes she can claim UC as a single person under Reg 3(3)(b) if he has been absent from GB for longer than allowed in his circumstances.  He doesn’t seem to meet any of the requirements for having longer than a month’s absence from GB, so she can claim as a single person now.  They are still aggregated for certain purposes (in particular any earnings he has will be taken into account).

PS Snap, AlexJ!

Thanks both - I had lost the wood for the trees.