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This is on behalf of a friend of mine who is an EEA national and has the following:

Sept 2012- Aug 2015 working part time. Discovered employer was not paying her NI contributions, employer was prosecuted for this, but she was told she has a gap in her NI record. She has other proof that she was employed (contract, payment slips etc.).
Aug 2015- Dec 2016 not working because of illness, and in receipt of Employment Support Allowance (a disability benefit).

I understand from the guidance that she cannot be penalised for her employer's actions and that therefore the time she was working counts towards exercising her Treaty rights.

Is it correct to assume that her clock has been reset and she has not been a qualified person since Aug 2015? Or is there an exception for disability?

LillyPearl wrote: Sept 2012- Aug 2015 working part time. Discovered employer was not paying her NI contributions, employer was prosecuted for this, but she was told she has a gap in her NI record. She has other proof that she was employed (contract, payment slips etc.).

Failure to pay NI (even if it isn't the person's fault as in this case) doesn't disqualify them from exercising treaty rights as a worker.
Try page 12 the section on tax and national insurance contributions - https://www.gov.uk/government/uploads/s ... 4_0EXT.pdf

LillyPearl wrote: Aug 2015- Dec 2016 not working because of illness, and in receipt of Employment Support Allowance (a disability benefit).

Is it a permanent incapacity to work due to a workplace illness?

“Worker or self-employed person who has ceased activity”

5.—(1) In these Regulations, “worker or self-employed person who has ceased activity” means an EEA national who satisfies a condition in paragraph (2), (3), (4) or (5).

(3) The condition in this paragraph is that the person terminates activity in the United Kingdom as a worker or self-employed person as a result of permanent incapacity to work; and—

(a)had resided in the United Kingdom continuously for more than two years prior to the termination; or

(b)the incapacity is the result of an accident at work or an occupational disease that entitles the person to a pension payable in full or in part by an institution in the United Kingdom.

- http://www.legislation.gov.uk/uksi/2016 ... ion/5/made

Otherwise,

(2) A person who is no longer working must continue to be treated as a worker provided that the person—

(a)is temporarily unable to work as the result of an illness or accident;

- http://www.legislation.gov.uk/uksi/2016 ... ion/6/made

Thank you very much.