Opinion: Caroline Kelly

It would be hard not to feel sympathy for the claimant and his mother in the case of Criminal Injuries Compensation Authority v First-tier Tribunal (Social Entitlement Chamber) and Y [2017] EWCA Civ 39. Twenty-nine-year-old Y was born with a serious genetic disorder which was probably caused by the incestuous rape of his mother, M, by her father, Y’s grandfather.

The CICS is a Government-funded scheme “designed to compensate blameless victims of violent crime”. It cannot be disputed that rape, incestuous or otherwise, is a serious and violent crime. Equally, many would find that both Y and M were blameless victims of such a crime and would have sympathy for their pain and suffering.

The court however, whilst expressing sympathy for Y and M, took the view that the only victim in this case could be M (who had already received compensation under a separate claim for the sexual offences), as Y had not been conceived at the time of the crime and therefore Y’s uninjured state could only be to never have been conceived.

That, however, does not detract from the fact that M has incurred and will continue to incur extra costs in bringing up and looking after a disabled child. The common law position on that matter is well settled. Although the costs of raising a healthy child cannot be recovered, the additional costs associated with raising a child with disabilities can be recovered, following Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530. The CICS does not however extend to such costs, and restricts “special expenses” to items such as the applicant’s damaged property or equipment, treatment costs, special equipment, cost of care in connection with the applicant’s bodily functions or meal preparation and adaptation of the applicant’s accommodation, along with certain other special expenses. The cost of raising a child with disabilities does not fall into any of these categories.

In any event, the CICS in its current form provides that only an applicant who has lost earnings or earning capacity for more than 28 weeks as a direct result of the injury for which the applicant is eligible for an injury payment is eligible for a special expenses payment. This eligibility restriction impacts many applicants, as it requires them to have had a restricted earnings capacity for a significant period, before they are entitled to recover lost earnings or special expenses.

Let us look again at what the CICS is designed to do. Does putting these restrictions on eligibility for loss of earnings and special expenses help the CICS meet its purpose? It would seem not, because M has been compensated for the injury but not the additional expense of raising a disabled child. In theory, M could have pursued her attacker, her father and Y’s grandfather, but as any personal injury practitioner is aware, it is unlikely that he would have the funds to meet any order against him. The Court of Appeal did express a view that it was clear that M had experienced and would continue to experience undeniable difficulties in caring for Y and that the common law position of being able to recover the extra costs of bringing up a disabled child should be incorporated as part of the scheme.

Should the Secretary of State address this issue in further versions of the scheme, that would go some way to assisting in cases such as this, where the child conceived and suffering congenital disabilities as a result of rape cannot recover compensation directly under the CICS. Consideration would also require to be given to the criteria for claiming such special expenses, as the CICS in its current form could still prevent some “blameless victims of violent crimes” being unable to claim the additional expense of raising a disabled child.