A severely disabled man who was born following the incestuous rape of his mother has won the right for his application for compensation to be reconsidered by the Criminal Injuries Compensation Authority (CICA).
The man, a 29-year-old known only as 'Y', was born after his mother was raped by her father. Y has a genetic disorder, epilepsy, learning and development difficulties, as well as hearing and sight problems.
The CICA rejected Y's original claim on the basis that he was not a victim of the man's actions as he did not exist as a person at the time the crime was committed.
Lawyers for Y say that the rape led to him being born with mutated genes which raised the chance of subsequent health problems from 2% to 50%.
Y's mother had previously successfully claimed compensation as a victim of unlawful sexual violence but when Y himself tried to get compensation as a victim of the crime, it was rejected by the CICA. His appeal to the First Tier Tribunal was also rejected.
Now, in what could be a landmark decision, the Upper Tribunal has referred Y's claim back to the CICA for reconsideration.
CICA's counsel, Ben Collins QC, said that although Y had endured "grave suffering" and the appeal "in no way detracts from its recognition of that," the decision was flawed because if the crime had not been committed then Y would not have existed.
"The harm of which Y complains was done not when Y was in the womb but in the very act of creating him," he said according to the BBC. "It is his own genetic make-up of which he complains."
Upper Tribunal judge Howard Levenson said: "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."