Disabled man born from incestuous rape loses compensation battle
In the UK, a severely disabled man born from incestuous rape has lost his Court of Appeal fight to claim compensation.
Last year, the Upper Tribunal said the 29-year-old, who can only be identified as Y, was eligible for an award under the Criminal Injuries Compensation Scheme.
Y's mother, who was abused from the age of 11 by her own father, brought a successful claim under the Criminal Injuries Compensation Scheme.
But, when Y tried to get compensation on the basis that he had sustained personal injury directly attributable to a crime of violence, the Criminal Injuries Compensation Authority (CICA) rejected his application.
That decision was backed by the First Tier Tribunal, but the Upper Tribunal sent the case back to CICA, which launched an appeal.
On Tuesday, Sir Brian Leveson, Lord Justice McFarlane and Lord Justice Henderson allowed the challenge - quashing the decision of the Upper Tribunal and restoring that of the First Tier Tribunal.
Y was born with a genetic disorder and has epilepsy, severe learning and development difficulties and hearing and sight problems.
In 1991, his grandfather pleaded guilty to incest and was jailed for three years.
CICA said Y could not be considered to be a victim of a crime of violence because he did not exist at the time of the incident and his condition was not a result of the crime of violence against his mother.
Judge Levenson, of the Upper Tribunal, said the scheme provided for compensation to be payable to "an applicant".
He added: "Clearly, at the time of the claim the applicant is a person. There is no provision in the scheme that the applicant must have been 'a person' at the time that the crime of violence was committed.
"In everyday terms and in common parlance, it seems to me that he has suffered injuries. Those injuries have been sustained in and are directly attributable to a crime of violence."
But Ben Collins QC for CICA said that, while it was acutely conscious of the "grave suffering" of Y and his mother, the Upper Tribunal's reasoning was wrong and its decision flawed.
"The harm of which Y complains was done not when Y was in the womb but in the very act of creating him.
"It is his own genetic make-up of which he complains."
The judges expressed their "profound sympathy" for Y's mother - referred to only as M - and her son's difficulties.
But this could not blind them to what they considered was the only proper construction of the scheme.
Lord Justice McFarlane said: "I strongly suspect that M's action in bringing this claim on behalf of Y is but one example of the way that she has stood up for him, and stood by him, throughout this long period.
"Although, as a matter of law, we have, in my view, no option but to decide against this claim, I fully understand why M has brought it and I admire her for doing so.
"She is a survivor who continues to care for her needy and highly disabled son and is a lady who, despite my tenuous encounter with her, commands my great respect."
Y's solicitor advocate, Malcolm Johnson of BL Claims Solicitors, said: "This is a bitter result for Y and his mother, who fought long and hard for the compensation needed to provide the care and support he deserves.
"However we are pleased that the Court of Appeal acknowledged that the CICA Scheme should address the position of mothers who find themselves caring for a disabled child born as a result of a sexual crime."
