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?
http://dlvr.it/S3r9NM

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