Man born with disabilities after incestuous rape of his mother begins compensation appeal

A landmark case involving a severely disabled man born from incestuous rape has reached the British Court of Appeal.

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, whose mother was abused from the age of 11 by her own father, was born with a genetic disorder and has epilepsy, severe learning and development difficulties and hearing and sight problems.

In 1991, the father - Y's grandfather - pleaded guilty to incest and was jailed for three years.

Y's mother brought a successful claim under the Criminal Injuries Compensation Scheme .

There is no dispute that the unlawful sexual violence against her was a criminal injury giving rise to compensation.

However, 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.

CICA said that 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.

That decision was backed by the First Tier Tribunal but the Upper Tribunal sent the case back to CICA, which launched its appeal today.

CICA's counsel, Ben Collins QC, told Sir Brian Leveson, Lord Justice McFarlane and Lord Justice Henderson that, on any analysis, it was a very sad case.

"While, on the one hand, it requires the parties and the court to deal with complex and difficult issues of law, the authority remains acutely conscious that it arises out of grave suffering on the part of Y and, in particular, his mother.

"The authority's approach to the law in no way detracts from its recognition of that."

The contested appeal is expected to last a day.

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."

Mr Collins said the Upper Tribunal's reasoning was wrong and its decision flawed.

If the crime of violence had not been committed, Y would not have existed, he added.

"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 reserved their decision to a later date.

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