A severely disabled Romanian man and his homeless and destitute family have brought a High Court challenge over being refused welfare payments.

The family have failed the right to reside test and so cannot receive social supports in Ireland.

Mr Justice Charles Meenan was told tragic events overtook the family who came here in December 2016 when the father, a diabetic who had already lost a leg, had to have the second one amputated. He remains in hospital because he has no home to be discharged to and his wife and children are homeless.

In an affidavit, Ioan Razneas said he never intended their move to Ireland from Romania would end up in such a catastrophic situation. He expected to find work adequate to support his family. He said the situation for himself and his family is now one of “complete destitution and desperation”.

Mr Razneas, his wife Anisoara Anghel and their two children Marian and Antonia, are seeking an order quashing the decision this month to disallow their appeal over non-payment of disability allowance and jobseekers allowance.

They claim the application of the right to reside test in their case is contrary to EU law and that Anisoara Anghel, as a jobseeker, has a right to reside here. They also seek a declaration there was an error in law in determining Ms Anghel was not a worker for the purpose of EU law during the period of a month in which she did a work placement.

The case is against the the chief appeals officer, the Minister for Employment Affairs and Social Protection and the State.

The Irish Human Rights and Equality Commission is a notice party to the proceedings.

In his affidavit, Mr Razneas, currently in Tallaght Hospital, said he and his wife and one child came to Ireland in December 2016. Another child was born here and their three older children are with their grandparents in Romania. He and his wife are Roma, an ethnic minority in Romania.

Mr Razneas became unwell after coming to Ireland and and his second leg had to amputated due to infection. He said in the last two weeks his wife and children had to present as homeless and the family are not eligible to be placed on the housing list in the absence of at least having one social welfare payment.

Mr Razneas said their situation is now of “complete destitution and desperation” and they cannot return to Romania as there is nothing there for them and they would only face destitution and discrimination.

He said the loss of his second leg was unforeseen and there had been failure to take this in to account in constantly refusing himself and his family some income to survive until his wife can secure work or he is sufficiently rehabilitated to secure work.

Mr Razneas said his greatest concern is the fate of his two children who are “now condemned to poverty and exclusion if they remain in Ireland”, exactly the fate he wanted to avoid for them in coming here and leaving Romania.

Mr Justice Meenan granted leave to bring the challenge and the case was adjourned to April.