Severely disabled man loses incestuous rape compensation battle

A severely disabled man born from incestuous rape has lost a landmark legal fight to claim compensation.

Three Court of Appeal judges upheld a challenge from the Criminal Injuries Compensation Authority against a lower court's endorsement of the 29-year-old's compensation claim.

The man, who can only be identified as Y, claimed on the basis that he had sustained personal injury directly attributable to a crime of violence.

What was Y's basis for the claim?

Y was conceived after his mother was sexually abused by her father, Y's grandfather, and was born with a genetic disorder and epilepsy.

Y also has severe learning and development difficulties along with hearing and sight problems.

His grandfather was jailed in 1991 for the incest.

Y's mother, who was abused from the age of 11 by her father, brought a successful claim under the Criminal Injuries Compensation Scheme.

But when Y tried to get compensation the Criminal Injuries Compensation Authority (CICA) rejected his application.

What was CICA's justification for rejecting him?

CICA argued he did not exist at the time of the rape and his condition was not as a result of the crime against his mother.

That decision was backed by the First Tier Tribunal, but the Upper Tribunal last year said Y was eligible for an award.

The Upper Tribunal said Y should be judged only as an applicant now and agreed his injuries were sustained in or directly attributable to the incestuous rape.

So why has Y not received compensation?

CICA appealed the decision, with Ben Collins QC arguing: "The harm of which Y complains was done not when Y was in the womb but in the very act of creating him."

While accepting the "grave suffering" of Y and his mother, he said: "It is his own genetic make-up of which he complains."

On Tuesday, Sir Brian Leveson, Lord Justice McFarlane and Lord Justice Henderson allowed the challenge, despite expressing their "profound sympathy" for Y's mother - referred to as M - and her son's difficulties.

Lord Justice McFarlane said: "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."

What is Y's reaction to the judgment?

Y's solicitor advocate described the ruling as a "bitter result for Y and his mother", who he said had "fought long and hard for the compensation needed to provide the care and support he deserves".

Malcolm Johnson of BL Claims Solicitors said they were heartened that other rape victims seeking compensation stood to benefit from their effort.

"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," he said.