Decision due on compensation for disabled man born from incestuous rape

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A decision is due on a landmark case at the Court of Appeal involving a severely disabled man born from incestuous rape.

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.

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.

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 an appeal last month.

On Tuesday, Sir Brian Leveson, Lord Justice McFarlane and Lord Justice Henderson will rule on what CICA acknowledges is a very sad case.

Ben Collins QC said that while it required consideration of complex and difficult issues of law, the authority remained  acutely conscious that it arose out of "grave suffering" on the part of Y and, in particular, his mother.

Mr Collins said 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."